author: RAILEY, C.

text:
    THE STATE v. JOHN H. BROWN, alias DE PRIEST, Appellant.
    Division Two,
    November 19, 1921.
    1. SUFFICIENT EVIDENCE: Robbery: Alibi: Identification. Testimony of a witness, clear and positive, that defendant held him up with a gun and robbed him of fifteen dollars; that when defendant stopped him he looted into his face and knew him well; that he had been going to a certain barber shop during the previous five years and often saw defendant there; that he afterwards identified defendant on the street as the man who had robbed him and had him arrested, and that he identified defendant in court as the man who had robbed him on the particular night; and the testimony of a policeman that, after he had arrested defendant, he called up the police station and learned that a report had been made on that particular night that the said prosecuting witness had come there and complained that he had been robbed of fifteen dollars, and that he then took defendant to said prosecuting witness’s house and said witness identified defendant as the man who had robbed him, is sufficiently substantial fb support a verdict of guilty, although four witnesses testify that at that very time defendant was at another place, and the report made by the prosecuting attorney to the police station named as the place of the robbery another place some distance from the actual place.
    2. -: -: -: Substantial Evidence. It is the peculiar province of the jury to determine the credibility of the witnesses, and they are not compelled to believe, nor the court required to believe for them, that the testimony of four witnesses tending- to establish an alibi for the defendant was true; nor is it the province of the court to reconcile minor discrepancies in the testimony of the witnesses, where there is substantial evidence to support the main charge contained in the information.
    Appeal from St. Louis City Circuit Court. — Hon. Benjamin J. Elene, Judge.
    Affirmed.

      Thos. J. Rowe, Jr., and Henry Rowe for appellant.
    . (1) The conflict in the testimony of the prosecuting witness, Ben Levin, and Special Officer Geo. Lawless, as to the place of the alleged robbery, the former’s knowledge of the identity of defendant at the time of the robbery and the lapse of time from same until the arrest of the latter, is tantamount to impeachment. (2) The testimony of a witness who has been impeached is no testimony at all, and cannot be considered when determining the question whether there is substantial evidence to sustain the verdict. State v. Francis, 199- Mo. 671. (3) The statement of the prosecuting witness to Special Officer Lawless, prior to the arrest of defendant, that he was robbed at Twenty-third and Franklin Avenue, and that prior to several days before the arrest of defendant when he saw the latter walking on the street near Eighteenth and Franklin Avenue, he had never before seen the defendant, is so inconsistent with and eon-trary to his testimony at the trial as to utterly destroy his credibility and demonstrate beyond peradventure that the verdict was the result of passion, bias and prejudice.

      Jesse W. Barrett, Attorney-General, Robert J. Smith, Assistant Attorney-General, for respondent.
    The evidence is sufficient for the case to go to the jury and the verdict should stand. State v. Underwood, 263 Mo. 685; State v. Bowman, 272 Mo. 498; State v. Maggard, 250 Mo. 340; State v. Coñcelia, 250 Mo. 420; State v. Taylor, 261 Mo. 228; State v. Eumfelt, 228 Mo. 452; State v. Sharp, 233 Mo. 295 ¡'State v. Fields, 234 Mo. 626.
   RAILEY, C.

On March 19, 1920, the Assistant Circuit Attorney of the City of St. Louis, Missouri, filed, in the circuit court of said city, his verified information, charging therein that John H. Brown, alias De Priest, on December 27, 1919, at the City of St. Louis aforesaid, did feloniously make an assault on Ben Levin and rob him of $15, etc.

Defendant was formally arraigned, entered a plea of not guilty, was tried before a jury and, on April 27, 1920, a verdict of guilty was returned as follows:

“We, the jury, in the above entitled cause, find the defendant guilty of robbery in the first degree as charged in the information and assess the punishment at imprisonment in the penitentiary for five years.”

The prosecuting witness, Ben Levin, a cutter for the Crawford & Meyer Cloth & Suit Company, at 9th and Washington Avenue, St. Louis, testified, in substance, that on December 27, 1919, about 8:45 p. m., he was walking to his home at 3200 Locust Street in said city; that when he got to 2900 Locust, the defendant stopped him there, and ordered him to go into 'the alley; that some one was walking with or near appellant just before this occurred; that defendant told Levin to raise his hands and stand still; that appellant then emptied the pockets of Levin, and took therefrom $15 in money; that defendant had á gun pointed toward Levin, and after he had taken his money, told him to walk straight ahead and to stay in the alley. Levin testified, that he got a good look at Brown, and identified him; that he had seen Brown before and had known his name for a couple of years; that a few weeks later, he saw defendant on the street, and had him arrested; that ne saw Brown walking on 18th and Franklin Avenue, and identified him as the man who robbed him; that he had seen defendant frequently at a barber shop at 1500 Franklin Avenue; that he reported the robbery to Officer Wells, but did not at that time, tell him defendant’s name; that he had seen Brown many times at Leo’s barber shop.

Gteorge J. Lawless testified, in substance, that he was a special police officer, and assisted in the arrest of Brown on February 17th, about eight o’clock p. m. at 1813 Franklin Avenue, which was near 905 Nortn 15th Street, where appellant said he lived; that he was present when.Levin first saw Brown after the arrest; that Levin identified defendant as the man who held the pistol at the time he was robbed; that Levin had told witness about being robbed at 23rd and Franklin Avenue; that when Brown was arrested, he said it was a mistake, that he did not know anything about it; that defendant requested witness to take him out to Levin’s house; that when they reached there, defendant was identified by Levin; that Levin did not give defendant’s name in his report to the police station.

Appellant testified, in substance, that- he was sometimes called De Priest, because his mother had been married twice; that his name is John H. Brown; that he never used the name of De Priest as an alias to deceive anybody, or hide anything; that he did not, on the night of December 27, 1919, hold up Levin and take money from him on 29th and Locust Street; that he was at the Wiehe Furniture Store that night; that he arrived at the last named place close to 7:30 o’clock, maybe a little"before or a little after; that he remained there until 10:30; that he did not leave there between 7:30 and 10:30; that he remembered being at the Wiehe Furniture Store on the night of December 27, 1919, because he got a check that day for $175, and deposited it; that his bank hook shows the deposit; that it was a part of his $265.50 of insurance money; that he and Mr. Doring talked about the check 'while he was in said store; that he exhibited his bank book showing the $175 deposit at that time. His attorney then asked this question:

“Q. Have you ever been convicted of any crime or offense? A. No, sir; never was.” ’

Defendant’s bank book was offered in evidence, showing the above entry.

On cross-examination of defendant, the following occurred:

“Q. You say you have never been convicted of a crime? A. No, sir.
“Q. Your name is John H. Brown, isn’t it? A. Yes, sir.
“Q. And you are known also as alias De Priest? A. I have been; yes, sir.
“Q. And you are also known as Booby Brown, you are referred to as Booby Brown, and didn’t you plead guilty on May 6, 1912, in Division No. 10 of this court, of assault to kill, and weren’t you sentenced to one year in the city workhouse? A. I pleaded to malicious assault, ...
“By Me. Reedeb : Q. You plead guilty and you were sentenced to one year in the city workhouse, weren’t you? A. Yes, sir, for assault to kill.
“Q. And on April 10, 1911, before that, in this courtroom, didn’t you plead guilty to exhibiting a dangerous and deadly weapon, and weren’t you sentenced to fifty days in the workhouse? A. What are the dates?
‘£ Q. April 10,1911. A. I think that is right.
<£Q. What do you mean by saying you were never convicted of a crime? A. I misunderstood that.
“Q. You didn’t think I had the record, did you? A. I never thought anything like that, I thought it was about any theft or robbery, that is what I was answering, I didn’t need to say. no.”

He said he was playing cards with other men at the Wiehe Furniture Store, on the night of December 27, 1919; that 'he could not remember other dates when he was playing cards at above store; that he remembers the date, because it was shortly after Christmas.

Eric Doring, Edgar Allison, Edward H. Eife and Harry Fox, each testified, in substance, that he was at the Wiehe Furniture Store on the night of December 27, 1919; that defendant Brown was there from 7:30 to 10:30 o’clock that night, and the above parties were playing cards; that Eife was balancing his books. Allison had known Brown about six years. Eife had known him about fifteen years, and Fox had known him about eight or nine years.

The foregoing covers substantially all the testimony in the case. The instructions and rulings of the court will be considered, as far as necessary, in the opinion.

The defendant, in due time, filed his motion for a new trial, which was overruled. After being duly sentenced in conformity to the verdict, defendant was granted an appeal to this court.

I. A single assignment of error is presented and discussed in appellant’s brief, which reads as follows:

“The evidence is not substantial enough to sustain the verdict.”

It may be conceded that, unless the record contains substantial evidence tending to show defendant’s guilt, it becomes our plain duty to reverse the case and discharge him from custody. [State v. Kelsay, 228 S. W. (Mo.) l. c. 756, and cases cited.]

We have made a very full statement of the facts heretofore, and it will only be necessary to refer to same as occasion requires.

The testimony of Ben Levin, the prosecuting witness, is clear and positive that about 8:45 p. m. on December 27, 1919, the defendant Brown, in the City of St. Louis, Missouri, held him up at the point of a gun, and robbed him of $15. He testified, that as soon as defendant stopped him, he looked in Brown’s face, and knew him well; that he had been going to Leo’s barber shop at 1515 Franklin Avenue during the last five years, and had seen defendant Brown there many times; that immediately after the robbery he went straight to the Dayton Police Station and reported it; that he did not report the robbery as occurring at 23rd and Franklin Avenue; that he identified defendant after the robbery, as the man who held the pistol and took his money; that he recognized defendant, when the latter was brought to the house of witness by the officer; that he recognized defendant Brown at the trial of the case, as the man who robbed him on the night of December 27, 1919.

George J. Lawless, a special police officer, testified that he assisted in arresting defendant on February 17, 1919; that he was present when Levin first saw defendant after the arrest; that Levin then identified Brown at the man who held the pistol at the time of the robbery; that after the arrest of Brown, he (witness) called up the 9th district, where 23rd and Franklin is located, to find out if a report of the robbery had been made, and the ninth district said, Levin come in there on the night of the 27th and complained of being robbed of $15 at 23rd and Franklin Avenue.

Thereupon the State rested, and no demurrer to the evidence was interposed.

Doring, Allison, Rife and Fox each testified that defendant was with them at the store of the Wiehe Furniture Co. on the night of December 27, 1919; that he was with them from 7:30 to 10:30 o ’clock that night.

The defendant denied that he robbed Levin, and alleged that he was with his friends at the store of the Furniture Company on the above date.

It was not a material issue as to whether Levin was robbed on Locust Street, or on 23rd and Franklin Avenue, except in so far as it affected his credibility. The jurors may have concluded that Levin was right, and the other testimony wrong, in regard to place of robbery. They were more interested in determining whether defendant held np Levin at the point of a gun, in the city of St. Louis, Missouri, and robbed him of $15, on the night of December 27, 1919. The jurors may have concluded that on the last named date the sun set before five o’clock, and that the robbery occurred before defendant went to the furniture store, if he was there that night. The jurors heard these friends of defendant testify as to appellant’s presence at the store that night, be.tween 7:30 and 10:30 p. m., and may not have believed their testimony to be true. The jury may have believed that Levin was mistaken as to the place where he claimed to have been robbed, and yet may have been satisfied from the evidence that defendant robbed him of the $15 in said city, on above date. None of appellant’s witnesses testified as to defendant’s previous character. We are of the opinion that there was substantial evidence before the jury, tending to show that defendant was guily as charged in the information.

It was the peculiar province of the jury to pass upon the facts. The witnesses were present in court where the jury and .trial court could hear them testify, and determine what weight should be given their testimony. There is nothing in the record to indicate that the jury was actuated by either passion or prejudice. On the other hand, it appears from the record that defendant received a fair and impartial trial before the jury. The judge who tried this case had the witnesses before him, and heard them testify. He overruled defendant’s motion for a new trial and, in so doing necessarily held that he was convicted on substantial evidence. On the record before us, we do not feel that this court would be justified in reversing-the case or remanding it for a new trial.

The above assignment of error is accordingly overruled.

II. Only one assignment of error is presented in appellant’s brief, which has been disposed of in the preceding proposition, but as the motion for a new trial complains of other alleged errors, we have carefully examined the record, as well as briefs of counsel, with the view of passing on same. We are of the opinion that the information is good; that the instructions given by the court fairly and properly declare the law that was necessary for the jury to intelligently pass on all the issues in the case; that no error was committed by the court during the progress of the trial of which defendant can legally complain; and that the defendant has been legally convicted upon substantial evidence after a fair and impartial trial.

The judgment of the trial court is accordingly affirmed.

White and Reeves, CC., concur.

PER CURIAM :• — -The foregoing opinion of Railey, C., is hereby adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: HIGBEE, P. J.

license: Public Domain

text:
    EDWIN W. MARSTON, Plaintiff in Error, v. LUCH CATTERLIN, Administratrix of Estate of JOHN M. CATTERLIN.
    Division Two,
    November 19, 1921.
    1. ACCOUNTING: Land in. Another County: Prayer for Compulsory Conveyance. Where plaintiff brought suit to set aside a sale under a deed of trust and to cancel a trustee’s deed conveying to defendant land in the county in which the suit is brought, and pending the suit, without notice of lis pendens, defendant conveyed the land, receiving in exchange as part payment land in another county, and the court adjudged that, under such circumstances, the plaintiff is entitled, by a suit for an accounting, to recover from defendant the value of the land so conveyed to him by the trustee, the said defendant cannot be compelled,' in the suit for an accounting, to convey the land in the other county so received by him in exchange, for the court does not have territorial jurisdiction to compel such conveyance; but the court has power, under the prayer for general relief, to compel defendant to account to plaintiff for the value of such land so received in exchange, although there is no specific prayer for such relief.
    2. EQUITY: General and Specific Prayer: Prayer for Conveyance: Judgment for Accounting. A court of equity may grant any relief consistent with the allegations of the petition. Where the petition contains a prayer for specific relief it may give a different relief; under a prayer for general relief it may, 'instead of granting a specific prayer to compel defendant to convey certain land to plaintiff, compel defendant to account for its value.
    3. ACCOUNTING: Limitations: Pendente Lite. The Statute of Limitations does not run while a suit involving the subject-matter is pending. Where plaintiff filed suit in 1903 asking that a certain deed be cancelled, for an accounting for rents and profits, and for general relief, and on appeal the judgment for defendant was reversed and the cause remanded, and thereafter in 1912 plaintiff filed an amended petition, alleging that pending the suit defendant had conveyed the land and asking for an accounting and for general relief, and on an appeal the judgment adjudging that plaintiff was not .entitled to the proceeds of the sale was reversed and the cause remanded with directions to proceed with a new trial on the question of accounting, either party to amend his pleadings so as to draw the issue upon that question more clearly, a second amended petition filed in 1917, stating the items of the account, was not barred by the five-year Statute of Limitations, for it did not declare on a new or different cause of action, and the suit had been pending at all times since 1903.
    4. -: -: -: Directions of Appellate Court. Where the Supreme Court remands a cause with express directions to the trial court to proceed with a new trial on the question of an accounting between the parties, that direction becomes the law of the case, and it is the duty of the trial court to take the accounting, and not to adjudge that an amended petition, which states no new or different cause of action, is barred by limitations.
    5. DEFENSES: Not Pleaded: Waiver. Where a defense might have been pleaded but was not, the defendant is concluded by the judgment as'to that'defense the same as if it had been pleaded and evidence introduced in its support.
    Appeal from Bates Circuit Court. — Hon. C. Á. Calvird, Judge.
    Reversed and remanded.

      Bowersock & Fizsell and Chastain & Smith for plaintiff in error.
    (1) The adjustment of the accounts between plaintiff and Catterlin was the only question properly before the circuit court. Citizens Bank v. .Donnell, 195 Mo. 564; Keaton v. Jorndt, 159 Mo. 179; Rees v. McDaniel, 131 Mo. 681; State ex rel. Wattenbarger v. Lamb, 174 Mo. App. 360; Ward v. Harén, 183 Mo. App. 569; Meyer v. Bobb, 184 S. W. (Mo.) 105; Kéltner v. Harris, 204 S. W. (Mo. App.) 561. (2) The decision of the Supreme Court that plaintiff is entitled to the proceeds of the Bates County land is the law of the case. In re Potts, 166 U. S. 263; In re Pork & Tool Co., 160 U. S. 247; Scott v. Imp. Co., 255 Mo. 76; Benton v. St. Louis, 248 Mo. 98; Chapman v. Railroad, 146 Mo. 481; Railroad v. Bridge Co., 215 Mo. 286. (3) The Statute of Limitations does not run pendente lite. State ex rel. Brown v. Wilson, 216 Mo. 215; Courtney v. Blackwell, 150 Mo. 245; Long v. Long, 141 Mo. 352; Southwest Nat. Bk. v. McDermand, 187 S. W. 121. (a) The suit is not for money only, (b) The claim to the proceeds of the land did not arise at the time of the sale by Catterlin in 1904. MacMullan v. Kelly, 124 Pac. 93; Murray v. King, 153 Mo. App. 710; Watson v. Payne, 149 Mo. App. 721; Canada v. Daniel, 175 Mo. App. 55. (c) The action was commenced m 1903, not in 1912. (4) Defendant has waived the Statute of Limitations as a defense by the failure to plead it upon the filing of the supplemental petition in 1912. Whiteside v. Magruder, 75 Mo. App. 364; Boyce v. Christy, 47 Mo. 70; Bank v. Clifton, 263 Mo. 200; American Radiator Co. v. Heating Co., 211 S. W. 56; McClintock v. Robertson, 136 S. W. 975; Orke v. Mc-Manus, 129 N. W. 68; Ingold v. Symonds, 111 N. W. 802; Wheeler v. Aberdeen, 92 Pac. (Wash.) 135; Pickel Stone Co. v. Wall, 108 Mo. App. 495; Lyman v. Harvester Co., 68 Mo. App. 637; Picener v. Bott, 47 S. W. (Ky.) 251; In re Cook’s Estate, 122 N. W. (Ill.) 578. (5) The circuit court erred in striking out of the amended supplemental petition all reference to the Jackson County land. Massie v. Watts, 6 Cranch (U. S.) 148; Muller v. Dows, 94 U. S. 444; Savings Bank v. Houchens, 115 Fed. 96; Wilhite v. Skelton, 149 Fed. 67, 78 C. C. A. 635; Saltón Sea Cases, 172 Fed. 792, 97 C. C. A. 214, 215 U. S. 603; Clark v. Fruit Co., 185 Fed. 604; McCune v. Goodwillie, 204 Mo. 306; State v. Jackritz, 166 Mo. 307; Olney v. Eaton, 66 Mo. 563.

      W. O. Jackson and Silvers & Silvers for defendant in error.
    (1) The Court of Appeals had no jurisdiction in the premises, because the title to certain real estate located in Jackson County, is involved, and tvill be affected by any judgement that might be rendered in this matter. Kemmel v. Nine, 121 Mo. App. 718. (2) In the second amended supplemental petition, filed by plaintiff in error in the Circuit Court of Bates County in 1917, such plaintiff sought to compel a conveyance of land in Jackson County, by the defendant, and if he failed, to divest him of title and vest same in plaintiff; and the circuit court of such county had no jurisdiction over land in Jackson County, R. S. 1909, sec. 1753; Ensworth v. Holly, 33 Mo. 370; Carr v. Lewis Coal Co., 96 Mo. 155; State ex rel. v. Meunch, 225 Mo. 210/222; State ex rel. v. Grimm, 243 Mo. 673; State ex rel. v. Reynolds, 265 Mo. 94, 190 Mo. App. 618; Castleman v. Castleman, 184 Mo. 438. (3) ,A court of equity has extra territorial jurisdiction when the proceeding is purely in personam. It has no jurisdiction over property in a proceeding in rem, where such property is beyond the jurisdiction of the court. State ex rel. v. Meunch, 225 Mo. 210, 224. (4) This proceeding against Lucy Catterlin was not a- personal proceeding, but purely a proceeding in rem in so far as it affected the land in Jackson County, and the Circuit Court of Bates County was powerless to enforce a proceeding in rem against such, property. R. S. 1909, sec. 1753; State ex rel. v. Reynolds, 265 Mo. 94; State ex rel. y. Grimm, 243 Mo. 673. No claim was made for the proceeds for more than seven years after the sale of the land. The contention had always been for the land in specie. This claim for the proceeds made seven years after the land was sold was clearly barred by the five-year Statute of Limitations. Simms v. Field, 24 Mo. App. 557; Baker v. Railway, 34 Mo. App. 98; Lumpskin v. Collier, 67 Mo. 170; Anderson v. Cahoon, 193 Mo. 547. (5) The amended supplemental petition filed in 1917 was so different that the evidence introduced to sustain the original hill filed by plaintiff would not prove or support the allegations of the amended supplemental petition. Such amended supplemental petition being new, the Statute of Limitations runjs from the time the cause of action originated as set out in the new and substituted petition. Wasson v, Roland, 136 Mo. App. 629; Henan v. Glann, 129 Mo. 325;- Lumpskin v. Collier, 69 Mo. 170; Scóville v. Glasner, 79 Mo. 449; McHue v. Transfer Co., 170 Mo. 85; Simms v. Field, 24 Mo. App. 557. (6) The plaintiff’s right of action for the proceeds of this land, if any he had, accrued when he took a note for the sale of the land or when the proceeds were invested in the Jackson County land in 1905. (7) No claim or contención was made for the Jackson County land or any interest therein until 1917, more than ten years after the land was put in the name of John M. Catterlin and a record thereof made in the recorder’s office in Jackson County. Such claim was barred by the,ten-year Statute of Limitations. (8) There was no concealment on the part of Catterlin so as to toll the running,of the statute, because his trust deed on the Bates County land was filed oí record in 1904 and his deed to the Jackson County land was filed of record in 1905. Plaintiff was bound to take notice of these records. Hudson v. Cahoon, 193 Mo. 547; Johnson v. Ry., 243 Mo. 297. (9) The five year Statute of Limitations runs as against a resulting* trust. Hudson v. Oalioon, 193 Mo. 547; Johnson v. By. Oo., 243 Mo. 300; Landis v. Saxon, 105 Mo. 489; Bank v. Barker, 145 Mo. 356; Johnson v. By., 243 Mo. 279, 294. (10) The Statute of Limitations can he invoked as against new matter set up in the amended petition. Hudson v. Cahoon, 193 Mo. 547; Simms v. Field, 24 Mo. App. 557; Baker v. By., 34 Mo. App. 98; Gibbons v. Steamboat, 40 Mo. 253; Wasson v. Boland, 136 Mo. App. 627; Lumpskin v. Collier, 69 Mo. 170. (11) The defendant had the right to answer or demur to any pleading filed by the plaintiff under the last decision of the Supreme Court. Ward v. Harén, 183 Mo. 569.
   HIGBEE, P. J.

Plaintiff brought an action in the Circuit Court of Bates County, on December 3, 1903, against John M. Catterlin, praying the court to set aside a sale under a deed of trust and to cancel the trustee’s deed conveying a tract of about eighty-seven acres in said county to Catterlin, or to allow him to redeem the same, with an accounting for the rents and profits, and for general relief. On the trial of the cause on December 12, 1904, the court found for the defendant. On appeal this court, on February 5,1912, reversed the judgment and remanded the cause, holding that the. property should be awarded to the plaintiff, subject to a certain claim of the defendant for reimbursement, and that the defendant must account for the rents and profits. [Marston v. Catterlin, 239 Mo. 390.]

On June 11, 1912, plaintiff filed' an amended petition stating, inter alia, that during the pendency of the action Catterlin had conveyed* the land, and that by mesne conveyances the title had vested in one Joseph Hodnett, who was made a co-defendant to the action. The amended petition also prayed the cancellation of said conveyances as fraudulent and without consideration, or, if Hodnett should be held to be a purchaser in good faith, that Catterlin be required to account for the proceeds of the sale of the land and for rents ana profits and for general relief. On December 2, 1914, judgment was rendered that'plaintiff was entitled to the land, subject to a lien in favor of Hodnett for $348.10 with interest, and that plaintiff was not entitled to the proceeds of the sale of said real estate, from which judgment plaintiff and Hodnett appealed. On February 2, 1917, this court reversed the judgment and remanded the cause with directions to the triál court “to dismiss the bill as to defendant Hodnett, and to proceed with a new trial on the question of an accounting as between the plaintiff and the defendant Catterlin. And to this end either party may, if he so desires, so amend the pleadings as to more clearly draw the issue, upon that question.” [Marston v. Catterlin, 270 Mo. 5.]

On April 26, 1917, plaintiff filed a second amended petition, alleging, in addition to the averments in the former petitions, the result of the second appeal, that Catterlin (who was made sole defendant) had received from Hodnett over $2000 as the purchase price of the Bates County land and had also received in exchange and as part of the consideration therefor a tract of three and one-half acres in Jackson County, and that.he held said last named tract in trust for plaintiff. The petition prayed that Catterlin be required to account for the rents and profits of said eighty-seven acres of land, and for all the proceeds he had received from the sale thereof, and that he be required to convey to plaintiff the said three and one-half acres in Jackson County, and in default thereof that the title to said premises be divested out of defendant and vested in fee in plaintiff (subject to a lien' in favor of defendant not necessary to be mentioned here), and for other equitable relief.

On October 12, 1917, the court sustained a motion to strike from the petition all the allegations therein referring to the land in Jackson County, on the ground that it was without the jurisdiction of the court, and for the reason that it appeared from the face of the petition that plaintiff’s claim to the land in Jackson. County is barred by the Statute of Limitations. On May 8, 1919, Catterlin died, and on May 26, 1919, the cause was revived against his administratrix, Lucy Catterlin. Thereafter, on October 15, 1919, the administratrix filed a demurrer to the amended petition on the ground that it failed to state facts sufficient to constitute a cause of action, and that the cause arose more than five years before plaintiff sued for the proceeds ox the sale of the Bates County land. The court sustained the demurrer on the ground that it was barred by the Statute of Limitations, and rendered final judgment for the defendant.

A writ of error was issued by the Kansas City Court of Appeals, and thereafter-the cause was transferred to this court for the reason that title to real estate was involved.

On the first appeal we held that plaintiff was entitled to the Bates County land, and that Catterlin must account for the rents and profits. In the meantime Cat-terlin had conveyed the land and the title had vested in Hodnett. On the second appeal, it was held that Hod-nett did not know of the plaintiff’s equity at the time he purchased the Bates County land. It was admitted that the statutory notice of lis pendens was not filed prior to its purchase; hence, he did not have constructive notice. It was also held that the petition was sufficient to entitle the plaintiff to an accounting for the proceeds of the sale of the land. The judgment was reversed, and the cause remanded with directions, as heretofore stated.

I. Did the court err in striking from the second amended or supplemental petition the averments as to the three and one-half acres of land in Jackson County t According to these averments, Catterlin received a conveyance to this tract in exchange, in part, for the sale of the Bates County land. The Player of the petition was that Catterlin be required to convey this tract to plaintiff, and for general relief. Section 1179, Revised Statute 1919, provides that suits for the possession of real estate or whereby the title thereto may be affected . . . shall be brought in the county where such real estate or some part thereof is situated. A judgment requiring Catterlin to convey the tract in question would, therefore, he beyond the jurisdiction of the trial court. [State ex rel. v. Grimm, 243 Mo. 667, 673; State ex rel. v. Cave, 272 Mo. 653, 668.] But the mandate of this court required the trial court to take an accounting of all the proceeds Catterlin received from the disposition of the Bates County land. When a court of equity one acquires jurisdiction of a cause, it will retain it to do full and complete justice. The court may give any relief consistent with the allegations, and where the petition contains prayers for specific relief, it may also give relief different from the specific relief sought. Under the prayer for general relief the court had power to take an accounting of the value of the Jackson County tract and to render a judgment therefor. [Holland v. Anderson, 38 Mo. 55; McLure v. Nat. Bank of Commerce, 252 Mo. 510, 518 et seq.].

II. The learned trial court also erred in sustaining the demurrer to the second amended petition on the ground that the cause of action set up therein accrued more than five years before such amended petition was filed. This action was commenced in the year 1903. On an appeal from the judgment, this court beld, in effect, that Catterlin was a trustee ex maleficio and reversed the judgment and remanded the cause. Meanwhile Catterlin'had conveyed the land and the title had vested in Hodnett. An amended petition was filed praying that the title be divested out of Hod-nett, or for the proceeds of the sale if he were found to be an innocent purchaser. The Statute of Limitations was not interposed as a defense. The statute does not run pendente lite. The second amended petition does not declare upon a new or different cause of action; it asks for an accounting for the proceeds of the sale of the. land. The statute was not available as a defense. [Long v. Long, 141 Mo. 352, 368; Courtney v. Blackwell, 150 Mo. 245, 271.]

Aside from these considerations the mandate of this court on the second appeal in express terms required the trial court to proceed with a new trial on the question of an accounting as between the plaintiff and the defendant Catterlin. The trial court should have proceeded and taken the accounting in obedience to our mandate. It is the law of this case. [Cape Girardeau & Thebes Bridge T. R. Co. v. Southern Ill. & Mo. Bridge Co., 215 Mo. 286; Citizens National Bank v. Donnell, 195 Mo. 564; Keaton v. Jorndt, 259 Mo. 179.] It is a familiar doctrine that where a defense might have been pleaded, the defendant is concluded by the judgment as to that defense the same as if it had been pleaded and evidence introduced in its support. [Pickel Stone Co. v. Wall, 108 Mo. App. 495.] But this suit was instituted in 1903 and not in 1917.

The judgment is reversed and the cause remanded with directions to the trial court to take an accounting as directed on the second appeal.

All concur.


author: REEVES, C.

text:
    W. E. STEWART LAND COMPANY, Appellant, v. S. P. PERKINS.
    Division Two,
    November 19, 1921.
    1. INTERFERENCE WITH LAWFUL BUSINESS: Cause of Action: Demurrer. Tile petition in an action on the case, charging defendant with maliciously interfering with plaintiffs lawful occupation, is set out in full in the opinion, and is held to state a cause of action, and the trial court erred in sustaining a general demurrer thereto.
    2. -: -: Time and Place. A motion to make more definite and certain, rather than a general demurrer, is the proper method to reach a petition which it is contended does not sufficiently charge the time or place of the performance of the unlawful acts qf. maliciously interfering with plaintiff’s lawful occupation.

      3. —■-: -: Sufficient Allegations. A petition which clearly charges that plaintiff was engaged in the transaction of a lawful business and that while so engaged defendant, without cause or excuse and actuated alone by malice, conspired with other unknown persons to interfere with and destroy plaintiff’s business, to his damage in the sum of thirty thousand dollars, states a cause of action. If plaintiff was engaged in a lawful business it was an actionable wrong for defendant, without lawful excuse, to form a conspiracy to injure him in that business, and then- to carry out the purpose of the conspiracy.
    4. -: -: Two Basic Propositions. An unlawful conspiracy to injure plaintiff’s business, carried out, will sustain an action on the case, and a lawful combination which seeks to effectuate its lawful purpose in an unlawful manner to the injury of plaintiff will sustain an action, if damages accrue to him.
    5. -: -: Malice Unaccompanied by Unlawful Acts. The conspiracy of defendant to injure defendant’s lawful business being wrongful, any wrongful act in pursuance thereof would be wrongful, and if damages result an action will lie, and in such case it cannot be held that the gravamen of the charge is malice unaccompanied by unlawful acts.
    6. -: -: Force and Intimidation. If the petition clearly charges an unlawful and wrongful conspiracy to injure a lawful business, it is not necessary that it allege that force and intimidation were employed.
    Appeal from Jackson Circuit Court. — Hon. Harris Robinson, Judge.
    Reversed aud bemauded.

      W. F. Zumibrunn, E. E. Bowers, D. G. Mayer, and E. S. Stratton for appellant.
    (1) It was error for tlie court to sustain the demurrer to plaintiff’s amended petition. Bixby v. Dunlap, 56 N. H. 456; Jackson v. Stanfield, 137 Ind. 592; Door Co. v. Fuella, 215 Mo. 446; Chipley v. Atkinson, 23 Fla. 210; Dels v. Winfrey, 80 Tex. 405; Walker v. Cronin, 107 Mass. 564; Carey v. Rutherford, 106 Mass. 10. (2) The court committed error in holding that it was necessary to charge that force and intimidation were used in attempting to divert business from plaintiff — the court failing to distinguish between those cases recognizing certain acts as legitimate means to further a lawful end, from those cases where similar acts are condemned, because the one committing them had no lawful purpose or end in view. In labor union cases this court recognizes the right of members to solicit the public’s refusal to treat with a boycotted concern, holding, in effect, that peaceful means, thus employed, is a legitimate method of furthering the ends of a lawful purpose. That is to say, our courts recognize labor unions’ rights to so act; conversely, one having no rightful purpose in view cannot interfere with the prosecution of a lawful enterprise, because in thus interfering with one’s lawful business, the offender thereby employs an unlawful means to further an illegal end.

      John Kennish and Daniel G. Ketchum for respondent.
    (1) The petition fails to state facts sufficient to constitute a cause of, action. (2) Malice without unlawful acts will not support the action. Land & Gravel Co. v. Commission Co., 138 Mo. 445; State ex rel. v. Dreyer, 183 Mo. App. 496 Chipley v. Atkinson, 23 Fla. 206; Allen v. Flood, 67 L. J. Q. B. (N. S.) 119. (3) Force or intimidation is essential in an action for damages for interfering with business. Root v. Anderson, 207 S. W. 255; Marx & Haas Co. v. Watson, 168 Mo. 133; In re Heffron, 179 Mo. App. 639; St. Louis v. Gloner, 210 Mo. 502; Wolf v. Harris, 267 Mo. 405: (4) Failure to allege time and place renders plaintiff’s petition demurrable. 25 Cyc. 446.
   REEVES, C.

This is an action for maliciously interfering with a lawful occupation, commonly called an action on the case. A general demurrer to appellant’s amended petition was sustained by the trial court and, standing on the petition, appellant has brought its case to this court, which it may properly do because the amount sued for is within our jurisdiction. The petition is as follows:

“1. For amended cause of action plaintiff states that it is a duly organized and existing corporation, organized and existing under the laws of the State of Missouri.
“2. That at all times herein mentioned, plaintiff has been engaged in the general immigration and colonization business, and in said business operates its own private cars and trains in taking prospective buyers to and from its lands, located in and about McAllen, Texas; that in assembling and congregating its prospective customers for the purpose of making up its special trains, the plaintiff through its agency force, brings such prospective buyers from different points throughout the United States to Kansas City (the latter point being the assembling point), and at Kansas City, said special train is made up of such prospective purchasers and taken to the location of plaintiffs lands for the purpose of making a physical inspection thereof.
“3. That at all times herein mentioned the defendant knew the business in which plaintiff was engaged and knew the general plan plaintiff used in the conduct of its business in the sale of its lands, and knew the method obtainable of congregating buyers for the purpose of being conducted to the situs of said lands with a view of making sales of portions thereof, and defendant knew that any activity which would create suspicion or mistrust or a lack of confidence in-the plan on the part of its prospective customers would be injurious to plaintiff and its business. Defendant also knew at all times herein mentioned, a large number of customers who had purchased lands of the plaintiff who were under contract to pay it sums of money growing out of various transactions respecting the sale of portions of plaintiff’s land.
“4. That the defendant is not and never has been engaged in the real estate or immigration business and is not and never has been interested in plaintiff’s business; that at all times mentioned the defendant, having no useful or lawful purpose to serve but for reasons known alone to himself, did, intending to harass, annoy, persecute, injure, destroy and otherwise interfere with the due prosecution of plaintiff’s business, enter into a conspiracy with certain unknown representatives and stool pigeons of defendant’s and did and has continuously circulated in and among plaintiff’s prospective customers and did and has and still does induce, procure, persuade and entice plaintiff’s customers to have no business relations or transactions with plaintiff, and defendant and his unknown confederates have gone out into various territories wherein plaintiff had an active agency force and was actively engaged in the prosecution of its business, and there among the public at large and plaintiff’s prospective customers did procure, persuade and induce the public at large and plaintiff’s customers to refrain from doing business with plaintiff, and defendant has at the same time, in connection with his unknown confederates, procured, induced, sought and persuaded all of plaintiff’s customers who had theretofore had business relations with it, to break their contract, and refuse to further treat with plaintiff or to pay plaintiff the sums of money required by the various contracts had with various customers.
‘1 That when defendant and his unknown confederates were attempting to persuade, induce and procure plaintiff’s customers to cease business relations with it, and plaintiff’s prospective customers to refuse to.treat with it, the defendant and his unknown confederates would, while engaged in said wrongful and unlawful undertaking, say to such customers and prospective customers, while attempting to interfere, harass, annoy and destroy plaintiff’s business, in substance as follows: ‘ That plaintiff’s lands were no good; that plaintiff was bankrupt and engaged in a fraudulent undertaking, ’ and many similar utterances, the language of which is unknown to plaintiff, hut which were a part of the general plan of conspiracy among defendant and his confederates to injure and destroy plaintiff’s business.
“5. That as a direct result of the unlawful malicious and wrongful purposes on the part of defendant and his unknown confederates, plaintiff has been drawn into a large amount of vexations litigations and its business injured in the sum of thirty thousand dollars.
“6. That plaintiff is engaged in a lawful undertaking and is entitled to lawfully and peaceably pursue its business and to be protected in its business property and property rights, and this plaintiff charges that the acts of defendant and his unknown confederates constitutes unwarranted and malicious interference with the due prosecution of plaintiff’s business and is a trespass and injury to the property rights and business of this plaintiff.
“7. That the actions of defendant and his unknown confederates were and are prompted by malice and all* acts charged herein were done maliciously, without legal justification or excuse.
“Wherefore, plaintiff prays that it may have and recover judgment against the defendant in the sum of thirty thousand dollars as compensatory damages, and the further sum of fifteen thousand dollars as punitive damages,gwith costs of suit.”

From the briefs filed in the cause we understand that the court below sustained the demurrer to appellant’s petition upon the grounds, first, because the conduct and acts of defendant did not involve, according to the allegations of the petition, the elements of force or intimidation ; second, because the gravamen of the charges is malice unaccompanied by unlawful acts; and, third, because the petition alleges neither time nor place of the performance of the acts complained against.

We may dispose of the last contention by saying that a motion to make more definite and certain would reach the defect complained against, rather than a general demurrer.

A careful reading of tlie petition will disclose that it clearly charges that appellant was engaged in the transaction of a lawful business and that while so engaged in the transaction of its appropriate business the respondent without cause or excuse, and, actuated alone by malice, conspired with others, not named, to interfere with and destroy appellant’s said business, and in pursuance of such conspiracy has actually interfered with and damaged appellant’s business. In our judgment this states a good cause of action, for the reason that appellant being engaged in a lawful business it was an actionable wrong for respondent without lawful excuse to form a conspiracy to injure him in his business and then to carry out the purposes of the conspiracy. To hold otherwise would be to declare that a wrong of this description inflicted upon a lawful business without justification would be harm without remedy. It is true that no civil action will lie for a mere unexecuted conspiracy, although such conspiracy, as in this case, would be unlawful, yet, whenever in pursuance of such unlawful combination to injure another in his particular business, means have been employed which tend t,o effectuate or accomplish the object of the conspiracy, an action on the ease will lie. [12 C. J. 589.]

We have two basic propositions under the law sustaining actions of this kind: first, an unlawful conspiracy to injure another’s business, carried out, will sustain an action on the case; second, a lawful combination which seeks to effectuate its lawful purposes in an unlawful manner to the injury of another, will sustain an action if damages accrue to the other.

The second contention made by respondent in his brief to the effect that the gravamen of plaintiff’s charges is malice unaccompanied by unlawful acts is not tenable. The conspiracy in the first instance being unlawful and wrongful any act in pursuance thereof would be wrongful and if damages result an action would lie.

Respondent contends that the petition to constitute a cause of action should have alleged the employment of force or intimidation. Not so in this case. There are combinations permissible nnder the law for the accomplishment of a lawful purpose, even though it involves injury to another. In such cases, the law upholds the combination and will permit such combination to pursue its lawful purpose in a lawful way hut it will not permit such combination to pursue its lawful purpose in an unlawful way, and force and intimidation, employed in a lawful combination are unlawful and, therefore, if employed will form the basis for an action on the case for such damages as may accrue because of the use and employment of such force and intimidation. The petition here succinctly charges an unlawful and wrongful conspiracy to injure a lawful business, and it follows that any act in pursuance of such wrongful conspiracy resulting in injury would be actionable.

Under our law there are a few exceptions where combinations may be formed and the purposes thereof carried out in such way as to injure another without creating a liability upon the combiners, provided always, that such purposes be carried out in a lawful manner. These exceptions are confined to legitimate competition and labor combinations where the purpose is to promote in legitimate fashion the interests of such competitor or labor union. In such cases the courts recognize the lawful purpose of such enterprises and only forbid its execution in an unlawful manner. The authorities cited by respondent do not conflict with the views expressed here. The case of Root v. Anderson, 207 S. W. 255, l. c. 257, upholds the right of labor unions to engage in lawful “picketing.” That case was decided by the St. Louis Court of Appeals and might be classified as a labor-union case. The court said: “It will be observed that the petition does not charge that the defendants, or any of them, resorted in any way to .violence, threats, or intimidation in order to compel or induce persons to refrain from dealing with the plaintiff as customers. In this respect the averments of the petition go no further than to charge that these defendants, acting in concert, sought by means of persuasion merely to induce persons not to patronize plaintiff’s theatre. ‘Picketing,’ in the sense in which that word is used under such circumstances, for the purpose alone of peaceful persuasion, argument, or entreaty, is not unlawful or actionable.”

The exception in favor of labor unions, and the reasons therefor, may be found in the case of Marx & Haas Clothing Co. v. Watson, 168 Mo. 133, l. c. 150. The court in that opinion justified the course of the defendants upon the grounds that, by peaceable means, they were seeking redress of wrongs, and promoting only their own lawful purpose. To the same effect is the case of St. Louis v. Gloner, 210 Mo. 502, l. c. 512, where the court upheld the rule that “argument and peaceable persuasion are lawful means to prevent laborers from working for an employer against whom the labor union has ordered a strike. ’ ’ This case and kindred cases uphold the purpose of labor unions, and, having recognized their lawful purpose, the courts will place no restrictions upon the lawful carrying out of the purpose.

In the case of Wolf v. Harris, 267 Mo. 405, relied on by respondent, the court held that plaintiff’s remedy was an action at law for libel or slander, and not by injunction. The court found in that case that there was lacking the element of conspiracy so as to bring it within the class of cases relied on by appellant here.

The case of Door Co. v. Fuelle, 215 Mo. 421, cited and relied on by appellant, is a “boycott” case wherein a labor union had declared and was prosecuting a “boycott” against plaintiff company, and a suit to enjoin was filed and prosecuted. The learned author of that opinion quoted exhaustively from the books on the questions involving the right of interference, by a person or persons, with the lawful occupation of another. Throughout the opinion the court maintained the right of laborers to combine for the assertion of their rights, and, peaceably to interfere with the business of an employer in the promotion of their lawful purpose. With equal firmness the court approved numerous pronouncements gleaned from the authorities to the effect that “ malicious injury to the business of another has long been held to give .a right of action to the injured party.” “Freedom is the policy of this country. But freedom does not imply a right in one person, either alone or in combination with others, to disturb or annoy another, either directly or indirectly, in his lawful business or occupation.” “Now, intentionally to do that which is calculated in the ordinary course of events to damage, and which does in fact damage another in that other person’s property or trade, is actionable if done without just cause or excuse. Such intentional action, when done without just cause or excuse, is what the law calls a malicious wrong.” “A man’s business is property . . . The right of acquiring, possessing and protecting property is classed, as a natural and inalienable right which all men have, with those of enjoying and defending life and liberty, and of pursuing and obtaining safety and happiness. This is an echo of Magna Charta repeated in the Declaration of Independence. For the preservation, exercise, and enjoyment of these rights (life, liberty and the pursuit of happiness) the individual citizen, as a necessity, must be left free to adopt such calling, profession or trade as may seem to him most conducive to that end. Without this right, he cannot be a free man. This right to choose one’s calling is an essential'part of that liberty which it is the object of the government to protect; and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.” “The wrongful interference with one’s business and prospective customers is as much an infringement of his rights as though contractual relations actually existed and were interfered with. ’ ’

All the authorities hold that a combination to injure, or destroy, the trade, business or occupation of another by threatening or producing injury to the trade, business, or occupation of such other is an unlawful conspiracy regardless of the name by which it is known.

If therefore, such a conspiracy, having alone the fixed purpose to injure another, is unlawful, then any injurious act committed in pursuance of that purpose is actionable. Even a labor union cannot lawfully conspire to break up their late employer’s business. [Foundry Co. v. Moulders Union, 177 Mo. App. l. c. 88.]

For other cases touching the questions involved here, see Hunt v. Simonds, 19 Mo. 583, and Darrow v. Briggs, 261 Mo. 244.

In our judgment appellant’s petition is sufficient as against an attack by general demurrer, and accordingly i we reverse and remand the case.

Bailey and White, CC., concur.

PER CURIAM: — The foregoing opinion by Reeves, C., is adopted as the opinion of the court.

Walker J., concurs; D. E. Blair, J., and Bigbee, P. J., concur in result.


author: WHITE, C.

text:
    AMERICAN PAPER PRODUCE COMPANY, Appellant, v. FRANK J. CARROLL et al.
    Division Two,
    November 19, 1921.
    1.. BREACH OF CONTRACT: Fraud as Defense: Pleading Scienter. In an action for fraud the scienter must be alleged; but where the allegations of the answer show such facts and circumstances that the party making the false representations must have known whether or not they were true, they are sufficient without a direct allegation that they were known to be false. •
    2. -: --•: Failure of Evidence: False Weights. The defense to plaintiff’s suit for breach of a hauling contract that plaintiff “falsely and fraudulently represented that the weights of the loads actually hauled were grossly and largely below ihe actual weights,"’ is not established by evidence which shows no misrepresentation of any weight actually ascertained, or by evidence which fails to show that plaintiff at any time knew or had reason to know that the estimated weights were incorrect, or by evidence which shows that all the transactions were consistent with good faith, or shows merely a mistake, or at worst negligence in the weighing.
    3. -: Incorrect Weights: Good Paith: Instruction. In an action for breach of a hauling contract where the defense is that the weight of the goods hauled was falsely and fraudulently represented, an instruction which requires the jury to find that plaintiff “in good faith weighed same or ascertained the weight of same and in good faith gave defendants such weights with reasonable and substantial correctness” is error against plaintiff, in that it requires the jury to find that the weights were correct and were ascertained in good faith, and places upon him a burden he is not required to sustain. If the weights were substantially correct, it would not matter whether they were ascertained in good faith or not; if the goods were weighed in good faith and presented to. defendant in good faith, some lack of correctness in the weight, arising through mistake, would not vitiate the contract, where it provided the method by which mistakes might be corrected.
    4. -: Substantial Performance. Where a party seeking to enforce a contract, or seeking damages for its breach, can show substantial compliance, except some inadvertent or unintentional element which may be corrected, he will not be denied recovery for such breach.
    5. -: Counterclaim. In an action for damages for breach of a hauling contract defendant cannot recover on his counterclaim for goods hauled and not paid for, unless there is a finding that he had performed his contract, or a finding of facts that would excuse him from such performance.
    Appeal from St. Louis City Circuit Court. — Eon. Franh Landwehr, Judge.
    Reversed AND rbmaNded.

      Leonard, Sibley & McBoberts for appellant.
    (1) Fraud consists in bad intent, wbich must be alleged and proved. Moss v. Riddle, 5 Crancb (U. S.) 351. (2) Burden of proof to establish fraud is upon the one charging it. Bigelow o;'_ Fraud (Ed. 1877) p. 57; Anderson v. McPilce, 86 Mo. 300; Smith on Fraud (1907 Ed.) sec. 267, p. 290. (3) Fraud is not to be presumed, and if conduct in question is equally consistent with good faith and honesty it will not he held fraudulent. (4) Knowledge of falsity, in the matter charged, is essential to fraud; so, without allegation and proof of such knowledge, there is no fraud. Moss v. Riddle, 5 Cranch, 351. (5) The plea in the answer here omits to allege knowledge by plaintiff of weights being in correct, and. hence the plea is insufficient. Reed v. Bott, 100 Mo. 62. (6) Parties may agree to adjust difference by such methods as section 9 of this contract describes, and parties cannot reject them and maintain an action despite their terms Dinsmore v. County, 60 Mo. 241; Williams v. Railway, 112 Mo. 463. (7) A general custom prevailing in any line of business is treated by the courts as entering into contracts in that line. Baer v. Glasner, 90 Mo. App. 289; Soutier v. Keller-man, 18 Mo. 509; Estes v. Shoe Co. 155 Mo. 585; Grocery Co. v. Hart, 223 S. W. 794. (8) Defendants could not properly recover on their counterclaim, under the contract, without allegation or proof of performance thereof. There is neither; and hence the recovery thereon is error. Eyerman v. Assn., 61 Mo. 489.

      R. M. Nichols for respondaht.
    (1) Plaintiff sued upon an express contract, which bound it in the following language: “All goods or property hauled be weighed by the party of the second part, and a memorandum of such weights furnished to the party of the first part, which shall be conclusive and binding. ’ ’ When it was shown that the plaintiff did not weigh a large part of the goods or property hauled, and universally did not weigh but a sample of a lot, defendant was excused from producing evidence of a “certified city weigher.” Kreitz v. Egelhoff, 231 Mo. 703; West v. Freeman, 76 Mo. App. 96; El Paso Mill Co. v. Davis, 194 Mo. App. 1. (2) It is élementary that fraud vitiates everything. Defendants were sued for a breach of contract. They showed that the “weights furnished by the party of the first part, which should be conclusive and binding,” -were frandlent and fictitious weights. Tbis showing constituted a violation of the contract on the part of the plaintiff, and there would be no obligation on defendants to get the weights of a “certified city weigher.” Williams v. Railway, 112 Mo. 494. (3) If the “certified city weigher” could be held to be an arbitrator, the statute provides that such an agreement is not conclusive, and that suit can be brought and maintained under the ordinary rules of evidence, notwithstanding such arbitration agreement. R. S. 1909, see. 395; Young v. Ins. Co., 269 Mo. 15. (4) When it was conclusively shown, partly by plaintiff’s own witnesses, that a large part of the products to be hauled were not weighed, as plaintiff contracted to do, under the allegations of performance, and the general denial raising the issue, the plaintiff could not recover upon the contract sued on. It became unnecessary for the defendant to show that the goods were weighed, or that lower weights were given than the actual weights of the goods, except to support the allegation of fraudulent representation. Yeats v. Ballentine, 56 Mo. 530; Keith v. Ridge, 146 Mo. 97. The testimony showed that the loads were reweighed upon city scales; the presumption would be that they were weighed by a certified city weigher; if not, the burden to show- that they were not so weighed shifted to' the plaintiff. (5) The failure of-plaintiff to weigh the products, which defendants were required to haul, and the presentation to defendants of the yellow sheets, containing the memorandums of fictitious weights, constituted a false representation. Defendants received these fictitious weights not knowing that they were false; acted upon such representations by hauling and charging, under the contract, four and one-half cents per 100 upon these fictitious weights. They were damaged thereby. Where there is any evidence of fraud, the question of fraud becomes one for the jury. Dyer v. Cowden, 168 Mo. App. 649; Devero v. -Sparks, 189 Mo. App. 555; Owens v. Rector, 44 Mo. 389. (6) The scienter was sufficiently charged in the allegations “that plaintiff falsely and frandently represented and stated to the defendants the weights of the loads,” and “that said false and fraudulent weights so given to defendants by plaintiff were so given for the purpose and with the intent,” etc. Hoffman v. G-ill, 102 Mo. App. 320; Adams v. Barber, 157 Mo. App. 385; Serrano v. Commission Co., 117 Mo. App. 195; Nauman v. Oberle, 90 Mo. 666. ' (7) If it could be said that the answer was defective in not alleging the scienter, its allegations were sufficient from which the scienter could be inferred, and the defect would be cured by verdict, the presumption being that the facts, imperfectly alleged, were proven. R. S. 1919, sec. 1550; State to use v. Webster, 53 Mo. 135; Pry v. Railway, 73 Mo. 132; People’s Bank v. Soalzo, 127 Mo. 164;- Seckinger v. Mfg. Co., 129 Mo. 590; Tomasson v. Ins. Co., 217 Mo. 485; Robinson v. Levy, 217 Mo. 498. (8) There was no error in excluding the evidence of a custom of weighing one bundle and guessing at the balance, because custom was not pleaded. Hayden v. Grillo’s Admr., 42 Mo. App. 1; Sietz v, Nix, 216 S. W. 793; Staroske v. Pub. Co., 235 Mo. 67. (9) Custom, however, could not vary the express stipulation in the ninth clause of the contract. Good-fellow’s Exr. v. Meeghan, 32 Mo. 280; Wolff v. Campbell, 110 Mo. 114. (10) There are allegations of proof and performance of the hauling by defendants under the contract in the counterclaim, and this before defendants were compelled to abandon it. If plaintiff now seeks to question defendants’ right to sue upon the contract, the question should have been raised by demurrer and by motion in arrest, neither of which were filed, and therefore such question of the record is waived. R. S. 1919, sec. 1230 and 1550; McGannon v. Ins. Co., 171 Mo. 154; Sid v. Railway, 211 Mo. 411.
   WHITE, C.

In this action the plaintiff demands damages for breach of contract. In 1917 the plaintiff' was engaged in the manufacture and sale of paper prod-nets, in tlie City of Saint Lonis. The defendants conducted a drayage and express btisiness. November first, 1917, the plaintiff and the defendants entered into a contract whereby the defendants, for a consideration of four and one-half cents per hundred pounds, agreed to haul, for three years from that date, the finished products of the plaintiff to any place in the cities of Saint Louis and East Saint Louis, as directed by the plaintiff.

Plaintiff’s petition alleges that the defendants undertook to carry out the terms of the contract, but at no time furnished sufficient equipment to comply with same, and on December 14, 1917, the defendants repudiated said contract and refused to perform it.

The petition -further avers that the plaintiff kept and performed all the terms and obligations of the contract to be performed by it; that it was compelled to get other teamsters and draymen, at increased prices of from four to six cents per hundred weight, to do the hauling which the defendants had contracted, to do. Judgment for twenty thousand dollars is prated. The contract sued on was attached to the petition as an exhibit.

Besides a general denial the answer pleads several defenses:

First, that the plaintiff ought nuc to maintain its suit because it first violated the contract sued on,-in this:
“The plaintiff falsely and fraudulently represented and stated to the defendants that the weights of the loads which the defendants were hauimg under the provisions of the contract to be grossly and largely below the actual weight of said loads . . . and that the said false and fraudulent weights so given ¿o the defendants by the plaintiff were so given for the purpose and with the intent of having defendants haui said loads at a rate or price far below the rate agreed to be paid said defendants for their services in hauimg said freight.”
second, that the plaintiff failed to supply the defendants with the loads of freight wherewith to load the trucks which-the defendants were required to furnish and did furnish at the plaintiff’s place of business, and that defendants were greatly damaged by the delay and loss of time. i
Third, a counterclaim setting forth an account showing the goods hauled during the month of December, 1917, and not paid for by the plaintiff, amounting to $87.54, for which the defendants asked judgment.

One part of the contract about which the controversy largely turns is the ninth paragraph, as follows:

“It is mutually agreed that the compensation to be paid to the party of the first part by party of the second part is to be four and one-half cents per hundred po'and weight, and it is agreed that all goods or property hauled be weighed by party of the second part and a memorandum of weight furnished to party of the first part, which should be conclusive and binding, except that said g-oods and property may be reweighed by certified city weigher and then such weights should be conclusive.

The plaintiff introduced in evidence ¿he contract and the letter by which the defendants repudiated it December 4, 1917, as follows:

“St. Louis, Mo., Dec. 14, 1917.
“American Paper Products Co.,
2nd & Bremen St.,
Mr. Pollack,
Dear Sir:
“On November 1, we started to deliver your goods to various places in the city. We have not weighed any of our loads up unto December 12, on said date we hauled five loads and weighed three, and found same to be from five hundred to nine hundred pounds over weight. On December 14, we hauled five loads, weighed all of them and found them to be .correct.
“It would not pay us to have to weigh every load, therefore we will discontinue your hauling on Saturday evening, December 15, 1917.
“Yours truly,
“F. J. Carroia & SONS.”

The plaintiff then introduced evidence as to the amount of freight which had been hanled for it from the time of the alleged breach of contract np to the thirty-first of May, 1919, and the amount paid for such hauling, to show that the plaintiff had been obliged to pay $3755.46^nore for such hauling than, under the terms of the contract, it would have had to pay defendants for the same hauling. Plaintiff sought to show that its business was increasing, and that it would continue to have to pay more than tile contract price for such hauling in the future.

The defendants introduced testimony to show that the price of-hauling had not increased during the time that followed their refusal to carry for the plaintiffs, but that such freight could be hauled as cheaply at all times as by the contract they had agreed to haul it, and for that reason the plaintiff was not damaged.

After the fourteenth of December, 1917, the defendants hauled no more freight under’ the contract.

The evidence was conflicting as to whether the plaintiff failed to furnish the defendants proper facilities for loading the freight upon the trucks which the defendants had for the purpose. The defendants offered evidence in support of their allegations of fraud which would discharge them from obligations under the contract. This evidence will be noticed more fully in considering its sufficiency to submit that issue of fact to the jury.

That the plaintiff had not paid for the hauling during the month of December, the account for which was correctly started in the counterclaim, was admitted; it claimed it was not obliged to pay that amount because the defendants had breached their contract by failing to haul goods after December 14th. This was the subject of defendant’s counterclaim.

The jury returned a verdict in fayor of the defendants on plaintiff’s cause of action, and in favor of defendants upon their counterclaim for $87.54, and the plaintiff appealed.

I. The appellant contends that the issue of fraud improperly was submitted to .the jury because the answer did not sufficiently allege fraud. The facts alleged constituting fraud, as set out above, show that the plaintiff “falsely and fraudulently represented” the weights to be below actual weights, “for the purpose and with the intent of having: the defendants haul said loads at á rate or price far below the amount agreed to be paid.” It is claimed that the allegation is insufficient because it fails to state that the plaintiff knew that the weights presented were false. In an action for fraud the scienter must be alleged. [Remmers v. Remmers, 217 Mo. l. c. 557.] But where the allegations of the answer show facts and circumstances such that the party making the misrepresentation must have known whether or not they were true, it is sufficient without a direct allegation of knowledge. [12 R. C. L. p. 421; Adams v. Barber, 157 Mo. App. 386-387, and cases cited.] Here the allegation that the plaintiff misrepresented the weights of the different loads which it shipped and which it claimed to' have weighed, with the intent to deceive the defendant as to such weights, is sufficient allegation of knowledge, since no objection to the answer appears to have been made before the trial.

II. It is further claimed by the plaintiff that there was no e/idence of fraud. The plaintiff had no large scale upon which to .weigh a truck load, but had small scales upon its platform, upon which it could weigh only a small part of a load; this was fully known to the defendants and to the defendants’ drivers. The method employed by the plaintiff in weighing the products was this: The goods were done up in bundles of uniform size, and these bundles were made up of corrugated fibre-board boxes; one of the bundles was weighed and the weight multiplied by the number of bundles of the same description, in order to get the weight of the total load. Where there were boxes and bundles of different sizes, a bundle of each size was weighed and multiplied by tbe number of bundles or boxes- of that kind and size. The evidence sufficiently shows that the method was known to the drivers of the defendants, and that Flank J. Carroll himself was present at times when the loading was done and had opportunity to observe the method of weighing.

The defendants further introduced as a witness one Henry Huhn, who was employed by the plaintiff and during part of the time weighed the freight -which was delivered to the defendants’ drivers. This witness quit the employ of the plaintiff December fourth. He testified that he attended to the weighing for the plaintiff and weighed as indicated above, and continued:

“My duty was to weigh products to be shipped or know they were weighed; not the entire shipment was weighed; a bundle of each, and we would estimate the weight of the rest and put it down on the shipping tickets [ticket shown]; part of this ticket is in my handwriting, December 5th, the day I left there; it shows twelve loads were hauled that day; the ticket of December 4th shows nine loads; the number of loads hauled per day depends on how many .teams and trucks were in use, and they would make at least two trips a day; the ticket of December 3rd, in my handwriting, shows fifteen loads; the weights on each load are given: for most of the loads they weighed one bundle and multiplied the number of bundles; some were not weighed at all, they went by a fixed weight we had there; all the loads to the International Shoe Company were measured by a fixed weight, and put down on the ticket as though'they had been weighed; when one bundle was weighed and the rest multiplied the result vas represented on the tickets as the total weight for the shipment; a good many shipments were on the fixed weight prop osition; considerable goods to the Excelsior Box Company and to Hamilton-Brown Shoe Company were weighed the same way; the weight per bundle was given us; in those cases we did not weigh the bundles, but the figmres of the weights were put on these slips as if they has been weighed; Carroll hauled all the shipments on the sheets you just showed me; on the sheet of December 1st two loads of stuff hauled by Carroll are items of fixed weights, not weighed at all, consigned to the International Shoe Company; we put down the weights based on those per bundle weights we had on the card; did not call Carroll’s attention to that fact; the sheet of November 30th shows fifteen loads of which three loads are of fixed Aveights, not weighed at all, sent to the International Shoe Company.”

The witness then went into detail as to the amounts of some of the loads hauled in the manner indicated, and then testified:

“We had a list at the shipping desk of the weight per bundle of each style, and that list was used during all my time, and I guess since; the weights varied; they would run from forty to about ninety pounds a Ipundle; the dray ticket of November 23,1917, shows sixteen loads hauled that day, including one load to International Shoe Company weighing about 11,000 that was not actually weighed; it was weighed as we always weigh them; ticket of November 22nd shows twelve loads, and five loads not actually weighed, to the International Shoe Company; followed same course; there were two or three large customers getting similar classes of goods, handled in about thesame manner; in those cases we had the weight per bundle and used the same weight on a January order in April; most of the time the space was so jammed that we could not get the factory truck loaded Avith goods near the scale; all I could do Avas to take the weight he brought out; the limited storage space and making a warehouse out of a shipping platform was the cause.”

The defendants introduced evidence to sIioav that three loads were hauled in December, which weighed from six hundred to a thousand pounds more than the amount stated by the plaintiff.

As shown above, the weights were arrived at by two methods: one by taking boxes of equal size and appearance, weighing one of them and multiplying by the total number. The other was to take the “fixed weight,” that is to say, the weight of one of several boxes of like appearance and size, as shown by some previous ascertainment of its weight, and from that “fixed weight” estimate the weight of the total number of boxes.

It would not matter whether the weight of one box of a kind was ascertained at the time, or whether it had been ascertained previously and the weight fixed, if that weight was ascertained and determined in good faith. There is no intimation anywhere that the weight -of the boxes which were actually weighed were not correct, or that the fixed standard of weight, applied to certain boxes which were not weighed at the time, was not fixed in good faith.

While article 9 of the contract provides the manner by which the defendants, if not satisfied with the weights, might have the loads re-weighed, the defendants were not obliged to pursue the exact method, but might show by any other method that the weight was wrong, and it would be for the jury to say whether it was shown successfully.

It appears from Huhn’s testimony that the boxes and bundles of apparent uniform size and weight did not in fact weigh exactly alike; that is, some weighed a little more than others. By the method of weighing the advantage might have resulted either to the plaintiff or to the defendant. The defendants found some loads in which the weight was greater than the estimate showed; they likewise found some loads in which the estimate was correct; it is quite possible and even probable that if they had weighed all the loads they would have found some of them in which the advantage would have been to the defendants instead of to the plaintiff.

It is significant that, when the defendants repudiated the contract by their letter of December 14th, they didn’t claim any intentional misrepresentation as to the loads, but they claimed only that they could not carry out the contract because they conld not afford to have the loads re-weighed. The evidence upon which the defendants rely to show fraud does not show that there was any misrepresentation any time of any weight actually ascertained, or that the plaintiff at any time knew or had reason to know that the weights which it estimated were incorrect. All the circumstances of the entire situation are consistent with good faith and show merely a mistake^ or, at most, negligence in weighing. We conclude that the evidence to sustain the allegation of fraud entirely lacked the element of fraudulent intent and knowledge of the erroneous weights.

III. The court instructed the jury upon the issues presented by the answer, and among other instructions, of its own motion gave instruction number one.

“The court instructs the jury that if you believe from the evidence that plaintiff and defendant entered into the contract, dated November 1, 19.17, mentioned in the evidence; that defendants began hauling freight and finished products or goods of plaintiff under said contract and continued doing so up to about December 15, 1917; that plaintiff kept and performed all the provisions and conditions of said contract on its part to be performed and provided with reasonable promptness and without unreasonable delay to defendants finished products or freight for defendant to haul, and in good faith weighed same or ascertained the tveight of same and in good faith gave defendants such weights with reasonable and substantial correctness; and if you find from the evidence that defendants failed to provide at. plaintiff’s factory at all tiihes a sufficient number of trucks or teams to take care with reasonable satisfaction of plaintiff’s hauling, and failed to haul such finished products and freight, if any, with reasonable promptness and dispatch, and finally on or about December 14 or 15, 1917, defendants refused to haul any more such finished products and freight, and refused to recognize further the contract or be hound by same, and that plaintiff was caused damage directly thereby, then your verdict will be for plaintiff. ’ ’

The plaintiff offered and the court refused an instruction similar in purport and almost identical in language to instruction number one except that part in italics. The appellant claims there was error in refusing the instruction as asked and in giving instruction number one in lieu of it. It will be noticed that that part of the instruction in italics requires the jury to find that the plaintiff “in good faith weighed same or ascertained the weight of same and in good faith gave the defendant such weights with reasonable and substantial correctness.”

This instruction places a burden upon the plaintiff which it was not required to sustain. If the weights were ascertained by the plaintiff and furnished to the defendants with substantial correctness, it would not matter whether they were ascertained in good faith or not. That would be the end of the matter. On the other hand, if the freight was weighed in good faith and presented to the defendants in good faith, some lack of correctness in the weight, arising through a mistake, would not vitiate the contract, because the contract itself provided the method by which mistakes might be corrected. Besides, it is not every inconsiderable breach of a contract on the part of one party to it which will discharge the other party from complying with it. Where a party seeking to enforce a contract, or seeking damages in its breach, can show substantial performance, except some inadvertent or unintentional element which may be corrected, he will not be denied recovery for such breach. [6 R. C. L. p. 967; Bushnell v. Boyers, 146 Mo. App. 200; Kreitz v. Egelhoff, 231 Mo. 703.] If the plaintiff in good faith weighed the product to be hauled by the defendants and presented the result to the defendants in good faith, believing it to be correct, and it proved to be incorrect, there certainly would be no fraud, and the plaintiff would not be denied recovery on that ground. The defendants had. a remedy to enforce payment for weights actually hauled, if acertained to be incorrectly presented.

The instruction required a finding both of correctness in the weights and good faith in ascertaining them, whereas a finding of either was sufficient to authorize a verdict for plaintiff. Therefore, the instruction was erroneous.

IY. The defendants recovered judgment in the sum of $87.54 on their counterclaim for the hauling which they did during the month of December before they quit the job. The principle of law which the defendant urges as preventing a recovery by the plaintiff on its cause of action applies here. The instruction by which that matter was ¿submitted to the jury authorizes a recovery by the defendant upon its counterclaim, according to the contract. without requiring a finding that the defendants had performed their contract, or a finding of the facts which would excuse them from such performance. There was, therefore, error in submitting that issue to the jury in that manner.

Other errors are assigned, which we deem it unnecessary to consider, as it is unlikely that the same circumstances will occur again.

The judgment is reversed and the cause remanded.

Hailey and Reeves, CC., concur.

PER CURIAM: — The foregoing opinion by White, 0., is adopted as the opinion of the court.

All of the judges concur; Walker, J., in the result.