author: BROWN, P. J.

text:
    OTTILLIE BLUMENTHAL et al. v. AUGUSTUS A. BLUMENTHAL et al., Appellants.
    Division Two,
    June 28, 1913.
    1. DEED: To Trustee: No Duty. The title to land conveyed by a deed to a trustee which imposed upon him no duty whatever passed at once to the beneficiaries named therein.
    2. --: Ambiguous: North Half: Meaning. The words “north side” and “north half” may mean the north half of a building on the ground described, and not the north half of the area.
    3. -: Ambiguous: Construction: North Side or Half: Not of Area, But' of Building. -A deed which undertook to convey 86 feet of ground fronting on the east side of a street by 150 feet deep, when in fact the tract, identified by other calls, fronted 82 feet on said street and was 16S deep, and which undertook to convey to one son for life “the north side” of said premises and "the title to that half of said property” to a daughter of said son and the heirs of her body, and to convey to two daughters of said grantor “the southern half of the 'premises heretofore described,” subject to • a life estate for another son, when on the northeast corner of the plot was a three-story brick building fronting 48 feet on the east side of said street, and extending eastward 55 feet along an east-and-west street, in which was a hallway eight feet wide extending from west to east through the entire building and from the first floor upward to the third, dividing the three-story building in the middle, the first story of which was fitted up for stores and the second and third stories for residence purposes,, is ambiguous and uncertain, both in its description, and in the portion of said tract it undertook to convey to the various grantees; and it is held, that it did not intend to convey to the one son and his daughter one-half in area of the 82 feet, or the north 41 feet of said tract, but the “north side” or “half” of the 48-foot building, the purpose of the deed being to divide the property with the center line of the hall.
    4. -: -: Parol Evidence: Meaning Parties Placed orí Deed. Where a deed is ambiguous, the intention of the parties, may be sought by inquiring into the condition of the property and the uses to which it was put. And the interpretation placed upon the deed by the parties themselves is very persuasive of its meaning. Where the deed granted the “north side” of a lot fronting 82 feet on the east side of a street to an older son for life and “that half” to his daughter in remainder, and “the southern half” to a younger son for life, with remainder in two’ unmarried daughters, and there was a 48-foot brick building on the north side of the lot, three stories high, with an eight-foot hall running the entire length through the middle, with a. store on each side of the hall on the first floor, and the upper stories arranged for residence purposes, the grantor did not intend to give to the younger son and two daughters only a seven-foot strip of a three-story building and 34 feet of vacant ground of small value; and the fact that immediately after the deed was executed, the two sons took possession of the building, the older of the north half, the younger of the south half, and each held possession of that half for twenty-six years, is very persuasive that the intention of the grantor was to make the middle line of the hall, and not the middle line of the 82 feet • of ground, the dividing line.
    Appeal from St. Louis City Circuit Court — Row. William M. Kinsey, Judge.
    Affirmed,

      J. L. Hornsby for appellants.
    (1) In construing a deed every part should he given effect. Chew v. Kellar, 171 Mo. 223; 17 Am. & Eng. Eney. Law (2 Ed.), p. 7, n. 3. (2) Parol testimony is not permissible to vary or control the words of a grant in a deed. Wolff v. Dyer, 95 Mo. 545; Jennings v. Brizeadine, 44 Mo. 332. (3) The word “half” where used in the deed in defining the respective interests of appellants and respondents should be construed literally, and means half in quantity. Boom Co. v. Whitney, 26 Mich. 42; Dart v. Barbour, 32 Mich. 267;. Owen v. Henderson, 16 Wash. 39; Winslow v. Cooper, 104 111. 235; Cogan v. Cook, 22 Minn. 137.

      M. W. Feuerb ocher for respondents.
    (1) Nothing but monuments can control courses, and distances. Where the land is described by another’s land, the latter tract of land is a monument of description, and the true line of his land will control the courses and distances given in the deed. Tiedeman Real Property (3 Ed.), p. 878-9, par. 603; Peas-lee v. Gree, 19 N. H. 273; Park v. Pratt, 38 Yt. 552; Smith v. Land & Imp. Co., 117 Mo. 444; Harding v. Wright, 119 Mo. 9; Whittaker v. Whitaker, 175 Mo. 11. (2) To render a deed or other instrument ambiguous, or void for uncertain description, the ambiguity must be patent, and appear on its face; but where the deed or instrument appears certain and without ambiguity and the uncertainty arises by matter outside of the instrument, then it contains a latent ambiguity and may be explained by the application of extrinsic evidence. Hardy v. Matthews, 38 Mo. 124; Lego v. Medley, 79 Wis. 218; Robards v. Brown, 167 Mo. 457; Groff v. Roberts, 72 Mo. 573; Schreiber v. Os-ten, 50 Mo. 516; Morgan v. Burrows, 45 Wis. 217; Jones v. Pashby, 62 Mich. 614. (3) The meaning that the parties attached to the language employed, especially in matters of description, may be shown by parol evidence relating to the situation and condition of the subject-matter. Devlin on Real Estate (3 Ed.), sec. 1015a, p. 1937; Lego v. Medley, 79 Wis. 211; Lyman v. Babcock, 40 Wis. 512. (4) A controlling principle in the construction of deeds as well as of wills and other instruments in writing, is to ascertain the meaning of the grantor from the words he uses, in the light of the circumstances which surrounded, attended and waited upon his use of them. Long v. Timms, 107 Mo. 512; Carter v. Foster, 145 Mo. 392; Speed v. Terminal Ry. Co., 163 Mo. 124; Aldridge v. Aldridge, 202 Mo. 572; Cansón v. Madigan, 15 Wis. 154; Railroad v. Frowein, 163 Mo. .17; Construction Co. v. Tie Co., 185 Mo. 62; Bernero v. Real Estate Co., 134 Mo. App. 299. (5) There can be no universal rule that the word half shall be interpreted in its ordinary meaning of one-half of the quantity, for it is often used in conveyances when the context indicates a sense quite different. Jones v. Pashby, 48 Mich. 637, 62 Mich. 614; Iron M. Co. v. Mining Co., 80 Mich. 491; Wolfe v. Dyer, 85 Mo. 545; Devlin on Real Estate (3 Ed.), sec. 1042, p. 2025; Grandy v. Casey, 93 Mo. 595.
   BROWN, P. J.

Action to determine and quiet title to real estate. From a judgment for plaintiffs, defendants appeal.

August A. Blumenthal, Sr., a citizen of St. Louis, was the father of four children; two sons, August A. Blumenthal, Jr., and Berthold W. Blumenthal; and two daughters, Paulina Blumenthal and Otillie -Blumenthal.

On January 26, 1876,-and only a few months before his death, said August A. Blumenthal, Sr., conveyed to one John N. Straat, as trustee' for his sons and daughters above named,-a parcel of land' in St. Louis City, which parcel of land .has a . frontage of eighty-two feet on the east side of Broadway street (then known as Main street), bounded on the north by Elwood street, on the south by the homestead of said grantor, and extending back eastward from said Broadway street an average depth of 163 feet to the right-of-way of the St. Louis, Iron Mountain & Southern Railway Company.

On the northwest corner of this parcel of land was and is situated a three-story brick building, fronting forty-eight feet on Broadway street and extending eastward along the south boundary of Elwood street about fifty-five feet.

The front entrance to this building is on Broadway street, where there is a hallway about eig’ht feet wide extending from west to east through the entire building, and from the first floor upward to the third floor thereof. The several floors of said building are connected by stairs in the above-mentioned hallway. The hallway divides the three-story building in the middle, and the first floor is fitted up for stores, and the second and third floods for residences or other purposes.

On the north side of this parcel of land, and in the rear of the three-story building before described, are two small one-story brick buildings fronting on Elwood street, neither of which extends southward from said Elwood street more than twenty feet.

This parcel of land, eighty-two feet wide north and south, by an average depth of 163 feet, was in the condition hereinbefore set out, when August A. Blumentlial, Sr., conveyed the same to Straat, as trustee, for the use of his two sons and two daughters, hereinbefore named, by deed, which reads as follows (Italics are ours):

“This deed, made and entered into this twenty-sixth day of January, A. D. 1876, by and between Augustus A. Blumenthal, party of the first part, of the city and county of St. Louis and State of Missouri, and John N. Straat of the same place, party of the .second part, and Augustus A. Blumenthal, Jr., and Paulina and Ottillie Blumenthal and Berthold W. Blumenthal, parties of the third part. Witnesseth: That said party of the first part, in consideration of ■one dollar to him in hand paid hy the said party of "the second part, and in further consideration of the natural love and affection which he has towards the said parties of the third part, has granted, bargained and sold unto the said party of the second part in •such manner as will hereafter be fully explained, a lot of ground situated in South St. Louis, Missouri, having a. front of eighty-six feet on the east side of Main street, .running back eastwardly of that width ■one hundred fifty feet, more or less, up to the Iron Mountain Railroad track, bounded west by Main ■•street, north by Elwood street, east by railroad track and south by ground heretofore owned by the grantor •and given to his wife during her natural life, and being about eighty-six feet off the northwest corner ■of block No. 7 of Filer’s survey of the town of Carondelet, which is now city block No.....the right of "the third parties is such as herein named, that Augustus A. Blumenthal, Jr., having the north side of the heretofore described premises during his life, and at his demise his daughter Genevieve will hold the premises to herself and the heirs of her body forever. Provided, however, in case if said Genevieve shall die before the death of her father, leaving heirs of her body living at the time of the death of her father, the title to that half of said property conveyed to Augustus A. Blumenthal, Jr., shall go and vest in the heirs of the body of said Genevieve and to their heirs and assigns forever. In case said Genevieve shall die without leaving heirs of her body then and in such a case the title to her share shall got to and vest in the heirs of the said party of the first part and their heirs and assigns forever. Paulina and Ottillie to get the southern half of the premises heretofore described under the condition as herein provided in fee simple that Berthold W. Blumenthal has the possession of their property during his life and after his demise they will be entitled of all rights, rents and profits deriving from said premises, but in case one of them should die the estate will go to her sister, but Instead if both should die without leaving any heirs of their body, then the estate will go and vest under the same conditions to the heirs of the grantor in common, but if they should die and leave any heirs of their body, the estate will go and vest in them and their heirs and assigns forever. In all other respects Aug. A. Blumenthal, Jr., shall be tenants in common as far as the payment of taxes, insurance and repairs Is concerned, with Berthold W. Blumenthal, the property is now insured in the Home Mutual in St. Louis for six years. Now, when the six years run out I want them to insure in four good mutual companies, in each one for fifteen hundred dollars. Now, if Berthold W. Blumenthal and if Augustus A. Blumenthal, Jr., shall promptly pay the taxes and insurance when due and shall keep the house in good order and repair, then in that case no rent shall be collected from them under no pretense whatever. To have and to hold said described premises and all rights, privileges and appurtenances thereunto belonging as herein conditioned unto him the said John N. Straat and his successor or successors in trust as herein has been described. In witness whereof, the said party of the first part and second part have hereunto set their hands and seals the day and year first above herein written.
“Aug. A. Blumenthal, (Seal)
“Jno. N. Straat, Trustee. (Seal)”

The real purpose of this action is to construe the above-quoted deed.

The learned trial judge being of the opinion that the foregoing 'deed possessed certain latent ambigui-' ties admitted oral evidence showing the situation of the property, and that immediately after the deed was executed said August A. Blumenthal, Jr., took possession and used the north half of the three-story brick building, and permitted his brother, Berthold W., to use the south half thereof until his death, which occurred in 1907. After the death of Berthold W. Blumenthal (in 1907) his brother, August A. Blumenthal, Jr., one of the appellants, asserted title to the whole north forty-one feet of the land conveyed by the deed, which forty-one feet covers one entire half in area of the eighty-two feet conveyed by the deed of his ancestor, and takes all of the three-story brick building except about seven feet on the south side thereof, whereupon this suit was instituted against said August A. Blumenthal, Jr., and his heirs by Ottillie Blumenthal and her sister, now Paulina Newell, who assert title under the aforesaid deed to all of that part of the eighty-two feet conveyed by the deed which lies south of a line running from west to east through the center of the hallway in the aforesaid three-story brick building. Plaintiffs concede that August A. Blumenthal, Jr., and his heirs are the owners of a strip of land twenty-four feet and three-fourths of an inch wide off of the north side of the eighty-two foot parcel of land described in the deed.

The evidence further shows that the eighty-two foot strip of land conveyed by the deed was platted in the special tax department of the city as two. separate parcels of lots “forty-three feet wide on Broadway”, and that during the tenancy of the three-story brick building by August A., Jr., and Berthold Blumenthal, Berthold paid general taxes on the “south forty-three feet”, and August A., Jr., on the “north forty-three feet” of the tract; it thus appearing that the city collected taxes on four feet more of land than was owned by the grantees in said deed. There were a few years’ taxes delinquent when this suit was instituted.

The evidence further shows that seven special tax bills for street improvements were recently assessed against the “north forty-three feet” of land described in the deed, and that August A. Blumenthal, Jr., has paid one of said special tax bills, and has also paid special tax bills for sprinkling the street.

There was also evidence tending to show that August A. Blumenthal, Jr., has paid the fire insurance on the entire three-story brick building since 1876.

The evidence is undisputed that the south thirty-four feet of the eighty-two foot parcel of land conveyed by Blumenthal, Sr., was at the time of the execution of -said deed, and still is, vacant and used by the occupants of the three-story building as a means of going around said building to the rear entrance thereof.’ It is, in fact, the only method of reaching the rear of said three-story building with wagons, the existence of the railroad preventing an entrance onto said land from the east end thereof. It was proven that this unoccupied thirty-four feet was worth only twelve dollars per front foot in 1876, when the deed was made.

After hearing the evidence the court, sitting without the aid of a jury, entered the following judgment sustaining the contention of plaintiffs:

“It is therefore ordered, adjudged and decreed by the court that the defendant Augustus A. Blumenthal, Jr., became and now is seized of an estate under and by virtue of the said deed executed by the said Augustus A. Blumenthal, Sr., to John N. Straat, trustee, dated the 26th day of January, 1876, and recorded in book 543 at page 182 of the Records of the office of the Recorder of Deeds of the city of St. Louis, for and during his natural life, in and to so much of the land described in said deed as lies north of a point in the east line of Broadway twenty-fonr feet and three-quarters of an inch south of the south line of Elwood street (fifty feet wide) and extending eastwardly and parallel with the south line of said Elwood street to the right-of-way of the St. Louis, Iron Mountain & Southern Railway Company, said line dividing the said three-story brick building located upon the land described in said deed into two equal parts, and passing through the middle of the hallway leading into said building and extending through the same from west to east, with remainder to Genevieve Blumenthal, how Genevieve Elstrat Steidle, under the conditions mentioned in said deed.
“And it is further ordered, adjudged and decreed by the court that Berthold "W. Blumenthal, one of the parties of the third part mentioned in said deed, and a son of the grantor therein, became upon the execution thereof, and was at the time of his death in January, 1907, seized of an estate for life in so much of the land described in said deed as lies south of the aforesaid line dividing said three-story brick building into two equal parts, and that at and upon his death the plaintiffs Pauline Newell, wife of Wallace E. Newell, and Ottilié Blumenthal became and now áre seized as joint tenants under the provisions of said deed, of that part of the land described therein and in this decree which passed under said deed to said Berthold W. Blumenthal for and during’ his natural life.
“It is still further ordered, adjudged and decreed by the court that the said Augustus A. Blumenthal, Jr., and those who will take after him under said deed, upon his death, and the said Pauline Newell and Ot: tilie Blumenthal, and those who take after them under said deed shall have and enjoy a common easement in and to said hallway and stairs dividing the said three-story brick building into two equal parts, and the burden- of keeping said hallway and stairs in good repair is, by this decree, imposed upon the owners of the north half and the south half of said building in equal shares.
“And it is still further ordered adjudged and decreed by the court that this decree shall not be a bar to an accounting between any of the parties hereto-for rents collected or moneys paid out for taxes, insurance or repairs on the above described premises, and that the costs of this proceeding shall be divided equally between the plaintiffs Ottilie Blumenthal and Pauline Newell on the one hand, and Augustus A. Blumenthal, Jr., on the other hand, and that execution issue therefor accordingly.”

In their motion for new trial the defendants assign as errors of the trial court: (1) The admission of improper evidence; (2) the exclusion of proper and competent evidence, and (3) a misconstruction of the deed executed by Blumenthal, Sr., which is the common source of title of the parties.

I. It is not apparent why John N. Straat was made a trustee in the foregoing deed. No duty was cast upon him by that instrument, and if he received any title under its provisions that title- passed through him like water through a sieve and became immediately vested in the parties of the third part under the Statute of Uses, section 2867, Bevised Statutes 1909. [Carter v. Long, 181 Mo. 701.]

II. The chief contention of appellants is that the deed before quoted is not ambiguous 4 or uncer ■ tain, but that it unequivocally grants to August A. Bulmenthal, Jr., and to his heirs, the frill north half in area of the eighty-two foot strip of land owned by Blumenthal, Sr, Can this insistence be sustained?

In onr judgment the deed is ambiguous. • The first latent ambiguity arose when a surveyor measured the land conveyed by Blumenthal, Sr. Instead of finding a parcel of land eighty-six feet wide, north and south, by one hundred and fifty feet long, east and west, as recited in the deed, he.found that between the boundaries named in the deed there is a parcel of land only eighty-two feet wide fronting on Broadway, and having an average depth of one hundred sixty-three feet.

There are words used in this deed which, under a strained interpretation, might be held to impart a desire on the part of Blumenthal, Sr., to vest in August A. Blumenthal, Jr., the whole north half in area of the eighty-two foot parcel of land conveyed; but when all parts of the deed are considered together, there is little to be found in its provisions to support said contention of appellants.

The only clause of the deed which purports to convey any specific part of the land to August A. Blumenthal, Jr., himself, is as follows:

“The right of the third parties is such as is herein named, that August A. Blumenthal, Jr., having the north side of the heretofore described premises during his life, and at his demise his daughter Genevieve will hold the premises to herself and the heirs of her body forever.”

This last quoted clause of the deed does not purport to convey any definite quantity of land, and if it were not for subsequent language descriptive of the part which his descendants should take upon the happening of certain things, the grant to August A. Blumenthal, Jr., would be void for uncertainty. [An ambiguity patent: Bell v. Dawson, 32 Mo. 79; McCormick v. Parsons, 195 Mo. 91; and 2 Devlin on Deeds ;(3 Ed.), p. 1913.] August A. Blumenthal, Jr., is in almost as poor a position to stand upon the very words of his deed as was a certain descendant of Jacob, who is said to have stood upon the “penalty and forfeit” of bis bond with disastrous results to himself. Immediately following the words of the deed which appellant contends vested in him and his daughter the north half in area of the eighty-two foot parcel of land, the following’ clause appears:

“Provided, however, in case if said Genevieve shall die before the death of her father, leaving heirs of her body living at the time of the death of her father, the title to that half of said property conveyed to Augustus A. Blumenthal, Jr., shall go and vest in the heirs of the body of said Genevieve and to their heirs and assigns, forever.”

The words “that half of said property conveyed to Augustus A. Blumenthal, Jr.,” seek a construction of the words “north side” of the heretofore described property, so that when we hark back to the only words which attempt to define the area of land conveyed to August A. Blumenthal, Jr., a serious doubt is cast upon the meaning of the last quoted clause of the deed which refers to “that half of said property conveyed to Augustus A. Blumenthal, Jr.”

The words “property conveyed” in their usual sense would be the land conveyed, but as there had, in fact, been no definite amount of land conveyed to appellants, we may well consider the remainder of the deed to ascertain what was the intention of the parties thereto.

Prom the fact that Blumenthal, Sr., misdescribed the shape and area of his lot, thereby indicating that he cared little or nothing for the area he was conveying, and the further fact that he used the words “the property” to indicate the three-story building, in prescribing how it should be insured and repaired, strongly tend to sustain the conclusion of the trial court that the grantor’s mind dwelt upon the three-story building, and not upon the area of the land when he executed this deed of gift to his children; also that he intended to divide the land-upon which the building stood, equally between his sons August A., Jr., and Berthold W. Blumenthal during their lives with remainders as recited in the deed.

That the elder Blumenthal intended to convey to> Berthold W. and his sisters Paulina and Ottilie a seven-foot strip of the three-story building is almost unbelievable. Said strip contained no entrance and would have been valueless to said grantees for actual use, and its transfer to them could only have resulted in friction and litigation among’ his children. It cannot be supposed that the grantor would expect Berthold to assume part of the expense of insuring, repairing and paying taxes on a small strip of a building which he could not use. Therefore, as the words of the grant, so far as August A. Blumenthal and his descendants are concerned, are ambiguous, we are fully justified in seeking the intent of the parties by inquiring into the condition of the property and the uses to which it was intended to be applied. When contracts or deeds are ambiguous the meaning placed upon such instruments by the .parties thereto while living is very persuasive in ascertaining their true intent. [Carter v. Foster, 145 Mo. 383, 1. c. 392; Moran Bolt & Nut Mfg. Co. v. Car Co., 210 Mo. 1. c. 736.) ‘ ‘ Tell me what you have done under a deed and I will tell you what that deed means,” is the substance of the above rule quoted with approval in the case last cited. After duly considering -the fact that the heirs of August A. Blumenthal, Jr., were given the same property in which August A., Jr., was given a life estate, and no more; that August A., Jr., permitted his brother Berthold to occupy the south half of the building’ during a period of twenty-six years without objection, together with the other evidence in the case, we are convinced that the matter of claiming for himself and his heirs more of the property than the trial court awarded them was a mere afterthought coming to the mind of August A. Blumenthal, Jr., since the death of his brother.

"Whether or not the ambiguity before mentioned in the language of the grant to August A. Blumenthal, Jr., and his children is such as to'render said grant void for uncertainty, is not necessarily before us for review in this case, because the respondents concede to appellants the amount of land which the trial court awarded them, and have not appealed from the judgment:

The judgment of the trial court is fully sustained by the law and the evidence and should be affirmed. It is so ordered.

Walker and Faris, JJ.; concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    INTERSTATE RAILWAY COMPANY, Appellant, v. MISSOURI RIVER AND CAMERON RAILROAD COMPANY et al.
    Division Two,
    June 28, 1913.
    1. MOTIONS TO STRIKE OUT AND FOR JUDGMENT ON THE PLEADINGS: Matter of Exception: How Preserved. Amotion to strike out part of a pleading, as well as a motion for judgment on the pleadings, is matter of exception which must not only be * preserved in a bill of exceptions, but must also be called to the trial court’s attention in a motion for a new trial, and the motion for new trial and the exception to the overruling of same must be preserved by proper bill of exceptions before the matter can be reviewed on appeal.
    2. DEMURRER: For Failure to State Facts Constituting Valid Defense: Overruled if Any Defense Stated: Record Proper. A general demurrer going to the whole case is a part of the record proper, but whether a demurrer to one paragraph of an answer is a part of such record is a matter of doubt not decided, because, even assuming that it is, where, as in' this case, plaintiff filed a demurrer to paragraph one of defendants’ answer on the ground that it did not state sufficient facts and in reality a part of paragraph one did state facts constituting a defense, the demurrer was rightly overruled. Whenever the answer, or that portion at which the demurrer is pointed, does state facts which would constitute a valid defense in whole or in part, the demurrer should be overruled, notwithstanding there may be some parts of the pleading attached which would be demurrable.
    3. -: Overruled: Proceedings at Trial Not Preserved for Review. Error is not to be presumed; and even assuming that the trial court erred in overruling plaintiff’s demurrer to paragraph one of defendants’ answer, yet plaintiff had left to it a sufficient way to maintain its point by objecting to any evidence which, might be offered by defendants in support of that paragraph, and where those matters are not properly preserved for review, and the judgment was general, the Supreme Court is precluded from considering the sufficiency of the paragraph in question to state a defense.
    Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.
    Affirmed.

      George H. English, Jr., Edward C. Wright, Ernest D. Martin and Gerson B. Silverman for appellant.

      Frank Hagerman and Beardsley $ Beardsley for respondents.
    (1) "While the motion to strike was preserved in a term bill of exceptions, there was no final bill of exceptions preserving the motion for new trial, and this is fatal to the right of review. Coffee v. Carthage, 200 Mo. 616, 629, 630. This is but an application of the rules that all matters of exception must be always again brought forward by a motion for new trial. Collins v. Saunders, 46 Mo. 389; Acock v. Acock, 57 Mo. 154, 156; Williams v. Railroad, 112 Mo. 463, 485; Childs v. Railroad, 117 Mo. 415; Gardner v. Railroad, 223 Mo. 413; Railroad v. Wyatt, 223 Mo. 347; Bank v. McMenamy, 35 Mo. App. 198; Paving Co. v. Benz, 81 Mo. App. 246. And that no motion for new trial can be considered unless incorporated ■ in a bill of exceptions. Collins v. Barding, 65 Mo. 496; State v. Gordon, 117 Mo. 387; Turley v. Barnes, 131 Mo. 548; Stark v. Zehnder, 204 Mo. 448. (2) The motion for judgment, upon the pleading’s, cannot be reviewed for that the action on the motion was preserved in a term bill of exceptions, but no motion for a new trial was preserved in the final bill. (3) The ruling upon the demurrer cannot be reviewed because it was not called to the attention of the court in appellant’s motion for new trial, and there was no final bill of exceptions preserving a motion for new trial, calling attention to the alleged error. The action upon the demurrer was clearly matter of exception. Williams v. Railroad, 112 Mo. 485; Paving Co. v. Benz, 81 Mo. App. 246. So that the points made as to the rulings upon the motion to strike are plainly applicable.
   WILLIAMS, C.

By this suit the plaintiff com* pany seeks to permanently enjoin the defendants from interfering with plaintiff’s enjoyment of its alleged right of way, which it has acquired or is about to ac- ' quire for the purpose of building a railroad from Kansas City, Missouri, to St. Joseph, Missouri. The allegations of the petition are, in substance, as follows:

That the plaintiff is a corporation, duly incorporated under article 11, chapter 12, Revised Statutes of Missouri, 1899, and as such corporation has power to construct and maintain a railroad for public use from the city of Kansas City through the counties of Clay, Platte and Buchanan, to the city of St. Joseph, Missouri; that it has laid out, platted and surveyed its line of railroad between said two points, reciting the sections and townships through which the same runs, and that it has filed its profile maps of said route in the office of the clerk of the county court of each county through which said road is to be made; that plaintiff has secured contracts for deeds for said right of way from a majority of the property-owners along said route, and is intending to build its said road along said route; that it has in good faith begun condemnation proceedings in the circuit courts of Platte and Buchanan counties to appropriate lands for its right of way not heretofore contracted for or deeded to plaintiff, and that it has in good faith begun the work of constructing a railroad upon said surveyed route and right of way; that “plaintiff is informed and believes, and states the facts to be upon information and belief,” that during the months of March and April, 1909, unlawfully and in violation of plaintiff’s rights, the defendants “wilfully, falsely, maliciously and wrongfully represented to parties having heretofore contracted to sell their lands to plaintiff company, that the contracts heretofore secured and now owned by the plaintiff company were null and void,” and by such wrongful statements induced some of the property owners along plaintiff’s proposed right of way to grant to some of the defendant companies a right of way over the same lands, and that the defendants are continuing to so represent and to so fraudulently induce; that none of the defendants have made a bona fide survey for their railroad, and have not filed profile maps, as required by law, “but, on the contrary, before even making a preliminary survey, filed what purports to be a profile map of the route to be adopted by them, which covers a great portion of plaintiff’s adopted line or route, and which were in fact filched from and are mutilated copies of profiles, maps and surveys heretofore in good faith filed by this plaintiff;” that the defendant “fraudulently, maliciously, wrongfully, wilfully and falsely represented” to certain owners of property along the right of way contracted for by plaintiff that plaintiff’s contracts and franchises had expired and become void, and that the defendants were the same plaintiff company, and thereby induced such property owners to make new contracts with the defendant companies in the belief that they were in fact renewing the original contracts which they had made with plaintiff, and that plaintiff notified the defendant companies of plaintiff’s rights in the premises, and requested the defendants to desist from further trespassing on its rights, but that, notwithstanding the same, defendants are proceeding in their said work of misrepresentation and of purchasing the right of way heretofore appropriated by the plaintiff, and are threatening to and are about to enter upon said lands and begin the construction of a road thereon; that the contracts, deeds or other conveyances taken by the defendants are a cloud on plaintiff’s title to said right of way; that plaintiff’s right of way passes through 185 different tracts of land, and that unless the defendants are enjoined from continuing to trespass and infringe upon plaintiff’s rights the plaintiff will be compelled to file and defend a large number of actions at law and equity for the protection of its said right of way, and endless litigation will ensue therefrom; that defendants are wholly insolvent, and that by reason of the premises plaintiff is without adequate remedy at law.

The prayer of the petition is, in effect, that defendants and their agents be restrained from continuing the acts complained of, and that upon a hearing, each of such contracts and conveyances taken by defendants in violation of plaintiff’s rights as aforesaid be declared void, that their pretended filing of maps be stricken from the records, and that defendants be permanently enjoined from constructing a railroad upon plaintiff’s right of way, and that plaintiff’s title to its right of way as heretofore appropriated be ratified and confirmed in plaintiff, and for such other relief as to the court might seem just and proper.

The essential portions of defendants’ joint answer are as follows:

“1. These defendants deny that the plaintiff, the Interstate Railway Company, is a corporation duly organized under the laws of the State of Missouri, and allege that if the plaintiff company was ever at any time properly incorporated under the laws of the State of Missouri, and existed as a corporation, it ceased to-so exist by reason of the failure upon its part to comply with the provisions of Sec. 1161 of the Revised Statutes of the State of Missouri, 1899, in that it did not, within two years after its articles of association were filed and recorded in the office of the Secretary of State, begin the construction of its road, and within one year thereafter expend thereon not less than ten per cent on the amount of its capital. ’ ’

(Paragraphs 2 and 3 of the answer admit the incorporation of certain of the defendant companies, and that certain of the individual defendants are officers and agents of defendant companies.)

“4. And these defendants, further answering, deny each and every allegation in plaintiff’s petition contained. ’ ’

(Note: Paragraph 4, as copied, is as it stood after being amended by striking from the original the word “other,” which appeared before the word “allegation,” and by striking out the words “except as the same may be specifically hereinafter admitted,” which appeared after the word “contained.”)

“5. Further answering, these defendants say that the defendant, The Jackson County Junction Railway Company, is a railroad corporation, organized and existing under the laws of the State of Missouri, for the building of a railway from a point about one hundred and seventy feet south of the south harbor line of the Missouri river, as established in 1904 in Kansas City, Missouri, to a point on the State line between the States of Kansas and Missouri, about four hundred and fifty feet north of the southwest quarter of section thirty-one, township fifty-four, range thirty-three west, in Jackson county, Missouri, and about four hundred and eighty feet south, measuring along the State line of Kansas and Missouri, of the south harbor line of the Missouri river established in 1904; and the Kansas City Junction Railroad Company is a railroad corporation organized and existing under the laws of the State of Kansas for the building of a railroad from the point last aforesaid to a point on. the south bank of the Missouri river north of Kansas City, Kansas; and the Lewis Bridge Company is incorporated and existing under the laws of the State of Missouri for the purpose of building a bridge across the Missouri river to a point at the place aforesaid; and the Missouri River & Cameron Railroad Company is a railroad corporation, incorporated under the provisions of chapter 12, article 2, of the Revised Statutes of Missouri for 1899 and amendments thereof, incorporated for the purpose of building a railroad begining at the point last aforesaid and extending in a northerly direction to Linkville, in Platte county; thence northeasterly to Smithville, in Clay county, and to Lathrop, in Clinton county, with extension and branch running from and connecting with the line last aforesaid at or near Linkville, in section eighteen, township fifty-two north, range thirty-three west; thence in a northwesterly direction to a point on the north line of section thirty-one, township fifty-four north, range thirty-four west, near Camden Point, in Platte county, Missouri; thence from the point last aforesaid, in a northerly and northwesterly direction, to the north line of Platte county, Missouri, at a point in section thirty-six, township fifty-five north, range thirty-four west, between the present line of the Chicago Great Western Railroad and the east line of said section thirty-six, and thence from the point last aforesaid, northerly and northwesterly in Buchanan county, Missouri, to a point in section thirty, township fifty-seven north, range thirty-five west.

“That these several corporations were organized for the purpose of consolidating them into one continuous line of railway hereafter, runing from a point south, of the Missouri river, near Broadway, in Kansas City, Missouri; thence to the west line of the State of Missouri, and thence to the Missouri river at a point north of Kansas City, Kansas; thence across the Missouri river, and thence, as hereinbefore described,, by the lines of the Missouri River & Cameron Railroad Company.

- “That pursuant to these plans the Jackson County Junction Railway Company has caused accurate surveys to. be made, and has filed in the office of the county clerk of Jackson county, Missouri, a map showing'its proposed right of way as adopted by its board of directors, together with a profile map of the proposed route, and has taken all other steps necessary and preliminary for the beginning of condemnation proceedings, and has already filed its petition for such condemnation in the circuit court of Jackson county, Missouri, at Kansas City,' which proceeding is now pending in that court, and has proceeded to the point where all necessary parties defendant having been brought into court, commissioners have been appointed’ by the court to assess the value of the lands proposed to be taken by that company in Jackson county, Missouri; and proceedings in condemnation have been had by the Kansas City Junction Railroad Company in Wyandotte count]7, Kansas; all preliminary steps therefor have been taken, commissioners having been appointed, and the award of the commissioners having been filed covering the line of the right of way of that company in Wyandotte county, Kansas, which is all of the line of that company from the Missouri-Kansas line aforesaid to a point on the bank of the Missouri river north of Kansas City, Kansas; and the said Missouri River & Cameron Railroad Company' has had actual surveys made, and has already andl prior to the adoption of any line by plaintiff, or filing of any proper map' by it, filed in the offices of the clerks of Buchanan county, Missouri, and' of Platte county, Missouri, a profile map of the route intended to be and then already adopted by said company in said respective counties, which maps show the actual survey, location and distance of the railroad through the congressional section through which such railroad runs, also the track and the number of miles of main and side tracks of such road in such counties, and which maps are certified by the president and engineer of the company, and has proceeded diligently upon the securing of the right of way along Its proposed line of rdad in said counties of Platte and Buchanan.

“That in the securing of the right of way and of the lands necessary for the carrying out of the proposed completed railway project, about $159,000 have been already in good faith expended, and the necessary permission has been obtained from the United States Government for the building of a bridge across the Missouri river at the place hereinbefore described for the connecting of the lines of The Kansas City Junction Railroad Company and the Missouri River & Cameron Railroad Company.

“That the several defendant companies and their officers and agents are proceeding in good faith in the securing of the necessary rights for the building and' equipping of a continuous railroad along the lines hereinbefore described.

“That defendants specifically deny that they or either of them, or any agent or employee acting by their authority or by their direction, has wilfully or falsely or maliciously or wrongfully made any representation whatsoever to parties owning lands along the line of the proposed right of way. They have said to landowners along said proposed right of way when the question has arisen, and■ now here reaffirm the truth of such statements, vis.: That the Interstate Railway Company no longer has any claim or right in any part of the lands along the proposed right of way of the Missouri River & Cameron Railroad Company, having in many instances where it had options upon right of way across lands not exercised that option within the time in the option provided, and that said Interstate Railway Company has ceased to exist as a corporation, because it had not complied with the provisions of the laws of the State of Missouri, and had abandoned its charter plans. These statements were made by defendants and their agents in good faith, believing that the said Interstate Railway Company had ceased to have (if it ever had) any right of way over and across the lands aforesaid along the line of the route proposed to be taken by the'Missouri River & Cameron Railroad Company.”

Attached to the answer is an affidavit by one of the defendants to the effect that all allegations of paragraph one of the answer are true.

Before replying, plaintiff filed a motion to strike out paragraphs one and five, said motion to strike out assigning as reasons therefor “that said portions of said answer are not responsive to the issues of plaintiff’s petition; they are wholly immaterial to the issues of this case, and constitute no defense to the cause of action in plaintiff’s petition set forth.” This motion to trike out was overruled by the court. Plaintiff then filed a demurrer to paragraph one of the answer, alleging as grounds of demurrer, “that said paragraph fails to state facts sufficient to constitute a defense to this action, and that the defendants have not the legal capacity to set up such defense;” which demurrer was overruled by the court.' Thereafter plaintiff filed its motion for judgment on the pleadings, which motion for judgment was overruled.

After these motions' were passed upon, defendants were permitted by the court to make slight amendments to the answer by interlineations and by striking out certain words and phrases. The interlineations thus made are shown by italics in the above copy of the answer.

Plaintiff filed term bill of exceptions containing plaintiff’s petition, defendants’ answer, motion to strike out, demurrer, motion for judgment on the pleadings, and tbe court’s ruling on said motions and demurrer. Afterwards plaintiff filed its reply, which was a general denial. Later trial was had before the court. The court found the issues for the defendants and against the plaintiff, and entered the following judgment:

“Now on this 29th day of October, 1909, comes plaintiff by its attorneys, George H. English, Edward C. Wright and Ernest D. Martin, and defendants by their attorneys, Beardsley, Gregory & Kirshner and William G. Holt, and this cause coming on to be heard on plaintiff’s amended petition and the amended answer of the defendants and plaintiff’s reply, and the evidence produced by both parties upon the trial, the court having heard all of the evidence and being fully advised in the premises, doth find the issues for the defendants and against the plaintiff; and being requested by plaintiff to make specific findings of fact and to announce conclusions of law, doth make certain findings, and doth refuse certain findings requested by plaintiff, and doth file said findings and conclusions, with the official stenographer, and doth order them to be made a part of the bill of exceptions herein. And' the court doth further find that plaintiff is not entitled to the relief asked for in its petition. ’
“Wherefore it is ordered, adjudged and decreed by the court that the temporary injunction heretofore granted herein be and the same is hereby dissolved, and that the defendants recover of plaintiff their costs and have execution therefor.”

Plaintiff appealed from the judgment. No final bill of exceptions was filed.

I. Appellant first contends that the court erred in overruling its motion to strike out portions of toe answer. Appellant failed to file a final bill of exceptions preserving therein „ . . , -, ,■, its motion for a new trial, and tnere is therefore nothing here subject to review except the record proper. A motion to strike out part of a pleading’ is not a part of the record proper, but is matter of exception which must not only be preserved in a bill of exceptions, but also be called to the trial court’s attention in a motion for new trial, and the motion for new trial and the exception to the overruling of same must be preserved by proper bill of exceptions before the matter can be reviewed here. [Shohoney v. Railroad, 231 Mo. 131, and cases therein cited; Coffey v. Carthage, 200 Mo. 1. c. 629.]

II. What we have said with reference to the motion to strike out is applicable also to the motion for judgment on the pleadings. [Godfrey v. Godfrey, 228 Mo. 507.]

III. Appellant in its brief insists that at least the demurrer to paragraph one of the answer is a part of the record proper, and that the ^ 1 t court committed error in overruling the demurrer. There can be no question but that a general demurrer going to the whole case is a part of the record proper, but whether a demurrer such as was filed in this case is a part of the record proper there may be some doubt; but we will assume for the purposes of the case that it is of the record proper, and subject to review without the aid of a motion for new trial. Whenever the answer, or that portion at which the demurrer is pointed, does state facts which would constitute a valid defense in whole or in part, the demurrer on the ground that it does not state facts sufficient should be overruled, notwithstanding there may be some parts of the pleading attacked which would be demurrable. An inspection of paragraph one of the answer discloses that the court did not commit error in overruling the demurrer. The first part of said paragraph reads: ‘ ‘ The ' defendants deny that the plaintiff, the Interstate Eailway Company, is a corporation duly organized under the laws of the State of Missouri, and allege,” etc. Paragraph one is supported by the affidavit of one of the defendants. This squarely puts in issue the allegation of plaintiff that it is a corporation. [Seel 1985, E. S. 1909.] The correct rule with reference to demurrers too broad in their scope is stated by Philips, P. J., in Justice v. Town of Lancaster, 20 Mo. App. 559, as follows: “If therefore any matter pleaded tendered any defense in whole or in part to the action, the demurrer was properly overruled. ’ ’

Furthermore, it might be added that even though the demurrer had been confined to the remaining portion of paragraph one, and it should be further determined that the demurrer thereto should have been sustained, yet it would afford no basis for a reversal of the judgment below, because we would still be in the dark with reference to what occurred on the trial. What occurred at the trial in this case, and upon what evidence or lack of evidence the judgment was based, is, in the absence of a final bill of exceptions and motion for new trial, a sealed book. The judgment is a general judgment. Whether the defendants introduced evidence to support the remaining allegation's of paragraph one, and the same was, over plaintiff’s objection, admitted, and formed the basis of the judgment, or whether upon tlie trial the defendants offered such evidence, but, upon plaintiff’s objection, it was excluded, or still further, whether the judgment of the trial court was based upon plaintiff’s failure to make out a prima-faeie case, or whether, after it did make out a prima-facie case, the same was overcome by defendants’ testimony, we do not know and are not at liberty to guess. The burden is upon appellant to point out the error of the trial court which resulted in his injury. Error is not to be presumed. As was well said by Lamm, P. J., in discussing an analogous situation: “So the court is presumed to have proceeded without error, and that presumption abides until an appellant shows us to the contrary. It will not do to overturn a judgment merely because the court at one step, by some ruling on a motion, indicated a questioning or hostile attitude to defendant’s position, so long as the ruling left to defendant an open road to maintain in an orderly way its position on the issues framed.” [Shohoney v. Railroad, 231 Mo. 1. c. 146.]

So in the present case, assuming arguendo that the trial court’s action in overruling plaintiff’s demurrer to paragraph one of the answer was wrong, yet plaintiff had left to it a sufficient way to maintain its point by objecting to any evidence which might be offered by defendants in support of that portion of said paragraph.

As above stated, we have no way of knowing what did occur at the trial, except that there was a general judgment finding the issues against plaintiff and in favor of defendants. Whether the judgment resulted from the contest over the general issue raised by the general denial contained in paragraph four of the answer, or otherwise, we cannot tell. Since this is true, it would serve no useful purpose to determine the validity as a defense of the remaining portions of paragraph one, and that question should be left to be determined when it is a live issue in a proper case.

The judgment is affirmed. Roy, C., concurs

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

All of the judges concur.


author: FARIS, J.

text:
    HAM & HAM LEAD & ZINC INVESTMENT COMPANY, Appellant, v. CATHERINE LEAD COMPANY.
    Division Two,
    June 28, 1913.
    1. SALE: Contract for Stock or Real Estate. A contract for the sale of “Catherine Lead Company stock to the amount of at least sixty per cent, on a basis of 50,000 shares, par value ten dollars per share. Total number of acres in fee about 1560. Good mill, tram and other improvements valued at about $60,000. The price and terms for the next sixty days will be on a basis of six per share — par value $10 per share,” and signed by the president of the company in his individual capacity, is a contract for the sale of stock, and not for the sale of the real estate of the corporation; and if the person to whom the letter was addressed sold the mine, he is not entitled under the contract to commissions.
    2. -: -: Ratification. Where the contract was for the sale of sixty per cent of the stock of a corporation at $300,000, and not for the sale of its real estate; a purchaser was to be found in sixty days, and none was found for the stock, but six months later one was found for the real estate, and the whole was sol.d for $200,000; the said purchaser, when approached by plaintiff, was taken to see other property, and declined to buy, and when his representative reported to a directors’ meeting he was informed another proposition was under consideration, and if he intended presenting a proposition it must be accompanied by a cash payment for $1000 offered by the other party, and “this requirement he was unable to meet and was excused;” and some months thereafter the said purchaser, having learned that the other proposition had fallen through, took up the matter of purchasing the entire mine with another, and did purchase it, there was no ratification.
    3. -: -: Competency of Witness: Interested Party: Other Party Dead. The secretary of plaintiff company, which sues for commissions on a contract of sale of defendant’s real estate made with the deceased president of defendant company, is incompetent to testify on behalf of plaintiff to certain conversations with defendant’s said president, tending to show ratification and rehabilitation and extension of "the contract. Being a party in interest, the mouth of plaintiff’s secretary and stockholder is closed by the death of defendant’s president.

      4. -: -: -; — :-:-: Attorney. The attorney for plaintiff company, which sues for commissions on a contract of sale of defendant’s real estate made with its,deceased president," is competent to testify to conversations with said deceased president soon after the property was sold concerning the collection of the commissions sued for. The attorney having no interest in the proceeding or action, and the contract or cause of action in issue and on trial not having been made in whole or in part by him and not being derived through him, he may testify to conversations with defendant’s president which grew out of an attempt to collect the commissions sued for, notwithstanding the subsequent death before trial of said president. But, in this case, the refusal of the trial court to permit said attorney to testify was not error, because notwithstanding such refusal the verdict was for plaintiff, and the court did not grant a new trial on that ground.
    5. -: -- — : Theory of Trial: Agency of Contractor: Admission of Objection. Where plaintiff’s theory is that the contract sued on was one of defendant corporation for the sale of its real estate, and defendant’s theory is that it was a personal contract of defendant’s deceased president for the sale of his individual stock,- defendant does not admit that said president was its agent and that what he did was done for it, by objecting to plaintiff’s interested witnesses testifying on the ground that said president, who made the contract sued on, is dead. Issues are made by the pleadings, and are not varied by the" fact that defendant objects that a witness, in view of plaintiff’s theory of his cause of action, is not competent to testify.
    Appeal from St. Louis City Circuit Court. — Hon. William B. Homer, Judge.
    Affirmed.

      Joseph Wheless for appellant.
    (1) It can always be shown, in the case of natural persons, that one who signed a' contract, such as this, in his own name, did so as agent for another. Where authority exists the question is one of intention. The same doctrine is applied to corporations. ‘.Jones y. Williams, 139 Mo. 37; Lewis v. Pulitzer Pub. Co., 77 Mo. App. 434; Sparks v. Transfer Co., 104 Mo. 531; Bond & Stock Co. v. Houck, 213 Mo, 416; Kropp v. Brewing Go., 138 Mo. 53. (2) Where the terms of the writing are ambiguous and the intention of the parties cannot be ascertained without resort to. extrinsic facts which are controverted or unconceded, the matter of intention is one -of fact for the jury, and not of law for the court. Realty Co. ,v. Clark, 145 Mo. App. 463; Ellis v. Harrison, 104 Mo. 279; Inrow v. Bybee, 122 Mo. App. 475; Counts v. Medley, 163 Mo. App. 555; Nordyke, etc., Co. v. Keh'lor, 155 Mo. 656; Hubbard v. Whitehead, 221 Mo. 683. (3) This company had the power to sell real estate; its president was its executive officer; he had authority to employ a real estate agent, and bind the company by it, even by parol. Jones v. Williams, 139 Mo. 27. The knowledge of plaintiff’s president is the knowledge of plaintiff itself. This is elemental. It accepted the full fruits of the contract without complaint or murmur. It does not appeal to our better sense of justice and right. Common Sense M. & M. Co. v. Taylor, 247 Mo. 1; Proctor v. Nance, 220 Mo. 114; Bank v. Lyons, 220 Mo. 555; Hughes v. Dodd, 134 Mo. App. 458; Hovey v. Aaron, 133.Mo. App. 528; Childs v. Critchfield, 66 Mo. App. 427. (4) Even if there were any defect in the original contract, it was ratified and adopted by defendant, performed by plaintiff, and is good ab initio. “Where an unauthorized act of an agent of a corporation is clearly beneficial to the corporation, a presumption of ratification will arise from slight circumstances.” Bank v. Bank, 107 Mo. 153; Hill v. Bank, 87 Mo. App. 605; Publishing Co. v. Warehouse Co., 123 Mo. App. 13; Bank v. Hitghes, 84 Mo.' App. 273. (5) The evidence, objections and instructions all proceeded on the “theory” of corporate contract —defendant cannot change its theory on appeal. Brick Co. v. Railroad, 213 Mo. 727; Hill v. Drug Co., 140 Mo. 439; Campbell v. Railroad, 175 Mo. 161; Hilz v. Railroad, 101 Mo. 36; Henry County v. Bank, 208 Mo. 226. (6) This court is bound by verdict. “We wish it to be understood that it is not our province to 'determine facts, or-review the findings of juries or courts on them, except*in chancery cases.” Hamilton v. Boggess, 63 Mo. 251; Bond & Stock Co. v. Houck, 213 Mo. 426. (7) A witness is competent to testify to a conversation heard between parties to a contract, where one party is dead, and the witness is secretary and treasurer of the other party, a corporation. Shirt Co. v. Frankenthall, 96 Mo. App. 307; Klopfer v. Levi, 33 Mo. App. 328; Tyler v. Hall, 106 Mo. 320; Deuser v. Walkup, 43 Mo. App. 628; Mott v. Bernard, 97 Mo. App. 269. (8) “Before a court is authorized to sustain a demurrer to the evidence because of its insufficiency, it must appear that, admitting all the evidence introduced by plaintiff to be absolutely true, and giving him the benefit of -every reasonable inference to be deduced therefrom, he is not entitled to recover.” Baird v. Railroad, 146 Mo. 265.

      Collins, Barker ds Britton for respondent.
    (1) In construing a contract, resort to extrinsic facts can be had only where the intention of the parties cannot be gathered from the language of the contract; and where such intention can be gathered from the language of the whole contract it is the province of the court to determine the meaning. Buxton v. Kroeger, 219 Mo. 244; Meissner v. Railroad, 211 Mo. 133; Meyer v. Christopher, 176 Mo. 580; County v. Wood, 84 Mo. 489. There is no ambiguity in the contract in this case; it was a personal contract (not the contract of respondent corporation) relating to the sale of certain shares of respondent; any other construction makes meaningless the principal provisions of the contract, as to subject-matter, price, etc. Sparks v. Dispatch, 104 Mo. 541. But if the contract were ambiguous, the contemporaneous construction placed upon it by the parties themselves will be adopted. Meyer v. Christopher, 176 Mo. 580; City v. Laclede, 155 Mo. 1; Williams v. Railroad, 153 Mo. 487; Craig v. Seybt, 91 Mo. App. 242. (2) Proof of ratification by a corporation, or adoption by acquiescence, of a contract not made in its name, or by its authority, must be clear and convincing; and, for either ratification (an affirmative act), or adoption by acquiescence (a negative act), full knowledge is essential, and, after knowledge, some act or acts indicating clearly an intention to adopt. Jones v. Williams, 139 Mo. 24; Hill v. Mining Co., 119 Mo. 9; Bank v. Gay, 63 Mp. 33; Besch v. Carriage Co., 36 Mo. App. 333; Pfeiffer v. Landsberg, 44 Mo. App. 59; Steunkle v. Railway, 42 Mo. App. 73; Story on Agency, sec. 239; Morawetz on Corporations, sec. 232. The subject-matter of the contract made the contract ultra vires as a corporate contract; but, aside from that, there was no proof of ratification or adoption by the corporation. (3) Respondent's president and its attorney were not competent witnesses; their testimony was offered to show some alleged admission by the deceased, Brickley, on the theory that the same would bind the corporation through adoption or acquiescence of the Brickley contract; and the court properly excluded them as witnesses. R. S>. 1909, sec. 6354; Bank v. Rood, 132 Mo. 256; Green v. Ditsch, 143 Mo. 8; Hollman v. Lange, 143 Mo. 106; Bank v. Slattery, 166 Mo. 633; Kirton v. Bull, 168 Mo. 631; Ashbury v. Hicklin, 181 Mo. 671; McKee v. Downing, 224 Mo. 137. And notwithstanding the exclusion of these witnesses, there was a verdict for plaintiff on its first count. (4) This respondent was forced into the position of trying the case on the theory adopted by appellant and by the court, ■and there can be no constructive admissions laid against respondent by reason of objections based upon •such theory, nor by reason of instructions made necessary thereby. Taylor v. Railroad, 213 Mo. 727.
   FARIS, J.

Plaintiff snecl defendant in the St. Louis Circuit Court for certain commissions alleged to be due it, as the assignee of a consummated contract for- the sale of the mining properties of defendant. The jury returned a verdict in favor of plaintiff for $16,433.30, which verdict was set aside by the trial judge upon motion for a new trial -filed by defendant. From the action of the court in granting a new trial, plaintiff, after the usual procedure, has appealed.

The plaintiff went to trial on a petition having originally three counts: the first was bottomed upon the below contract; and the third upon a quantum meruit. (The second count was dismissed and its contents are not shown, nor are they pertinent.) The jury found for plaintiff on the first count, as stated, but on the third count, which was upon quantum meruit, the finding was for defendant. The answer of defendant to the first count was a general denial; to the third count a general denial, plus a plea of the Statute of Limitations. Reply, conventional and not here pertinent.

The reasons which moved the learned trial judge in sustaining the motion for a new trial are thus succinctly stated by him in the memoranda by him filed, to-wit:

“I have gone over again and again the contract of January 21, 1904, and I cannot make out of-it an authorization or direction of the defendant to the plaintiff to sell the real estate in question. I cannot give it the meaning necessary for the plaintiff to- recover in this case without wholly disregarding a large portion of that part of it which is in writing.
“.As to the point that the defendant offered instructions along similar lines to those offered by the plaintiff, it is sufficient to say that the defendant was forced into that position by the refusal of the court to give a peremptory instruction at the end of the plaintiff’s case.
“I feel, therefore, obliged to grant the defendant a new trial in this ease for failure to give such instruction. ” ;

The facts necessary to an understanding of the legal questions involved are that at and before December 9, 1903, the defendant, a corporation, at the time owning certain extensive mining properties in Madison county, Missouri, had become financially involved to a pressing and acute degree and was desirous, of selling its holdings. S. H. Brickey, who died before this suit was tried below, was the president of defendant. At a special meeting of defendant’s board of directors, held on December 9, 1903, the below order was made:

SPECIAL MEETING.
The president was authorized to offer Mr. Beers a com-, mission of ten per cent should he effect a sale of the property within thirty days at a price of $300,000, it being understood that the commission would be paid only as cash payments on the property were made.

Defendant company was capitalized at the sum of $500,000, divided into shares of ten dollars each par» value.

Something over a month after the making of the' order above quoted, S. H. Brickey executed with plaintiffs’ assignors (who were then co-partners only, doing business as Ham & Plam, but who have since incorporated under the name and style here- shown in the caption), the following agreement:

WE DO NOT SELL STOCK.
Ham & Ham,
Zinc and Lead Investments,
10 Wall Street, New York.
Frisco Bldg., St. Louis, Mo.
We do the advertising.
We send purchasers direct to owners.
Dated at -, Jan. 21, 1904.
. Ham & Ham,
St. Louis, Mo.
Gentlemen:
We have for sale the following described mining property (prospectus, etc., attached to this letter), situated in:
. Catherine Lead company stoch to the amount of at least (60%) sixty per cent, on a basis of 50,000 shares, par value ($10) ten dollars per share.
Total number of acres in fee about 1,560.
Total number of acres under lease - on which we pay-per cent royalty.
Machinery and improvements consist of:
Good mill, tram and other improvements valued at about $60,000 or more; also several tenant houses, 30 or more, and several hundred acres of fine farm land (see last report).
If you send us a customer, with or through whom we make a deal on the above described property, we agree to pay you 10% on the first $50,000, or any part thereof, and 5% on all over. $50,000, when property is conveyed.
We agree to telegraph you a price on the above property at any time you desire to introduce customers. The price and terms for the next 60 days will be as follows:
On a basis of six per share — par value $10 per share.
We agree that the price made to you will be as low as price made to anyone else. We sign the above contract with the understanding that the prospective purchaser will be introduced to us, and that we are to deal with him direct.
S. H. Bbicket.

(.This contract was on a printed form. We show in italics the words written thereon in pen and ink.)

On May 12, 1904, the minutes of the directors’ meeting show the following, among other things, to-wit:

Mr. Brickey also reported that the parties who had spoken to him about the property had sent an engineer down to examine it and would report May 13th. In order to give the first parties a chance for a hearing, and inasmuch as their letter was on the way and Mr. Carter’s proposition could, in all probability, be held" over for a day, it was resolved to adjourn the meeting until Friday, May 13th, at twelve noon, and postpone any action until then.
May 13, 1904. Adjotirned meeting. Mr. Carter renewed his offer made .May 12th, and tendered deposit of $1000 to secure option. Mr. Brickey stated that Hamm & Hamm, who sent an engineer down to examine the property, telephoned him. that their Mr. Ross would report at this meeting as to what the report was and what they proposed doing. Mr. Ross was therefore invited hy phone to come to the meeting and report. Mr. Ross arrived and stated that the engineer, Mr. Hall, above referred to, had made report on the property, hut he, Mr. Ross, did not show any written statement other than his own relative to the result of the examination. He was informed that the Carter proposition was under consideration, and if he intended presenting a proposition it would have to he accompanied hy a cash payment greater than $1000 offered hy Mr. Carter. This requirement he was unable to meet and was excused from the meeting.

Prior to the transactions had at the directors’ meeting, the minutes of which we quote above, plaintiff wrote to Brickey the following letter:

• St. Louis, Mo., May 5, 1904.
Mr. Brickey,
Catherine Lead Co., City.
Dear Sir:
A gentleman from- Cleveland, accompanied hy a mining engineer from the west, is here, and in the market for a good lead property. I have spoken with him regarding the Catherine. Could you make it convenient to step over to our office for a few moments? ■ Yours truly,
Ham & Ham,
Zinc and Lead Investment Co.,
A. Ross, Secretary.

Thereupon Brickey came to the office of plaintiff company and after a conversation had with August • Ross, the secretary of plaintiff, wrote this letter:

St. Louis, Mo., May 5, 1904.
Mr. L. J. Cox, Supt.,
Catherine Lead Co.,
Fredericktown, Mo.
Dear Sir:
You will piease snow these gentlemen through our mines and mining property and give them any information that they may wish in regard to mine and plant. They are looking at the property with a view of probably purchasing.
Yours truly,
S. H. Brickey, Pres.

Between May 5, 1904, when the letter from Brickey to the superintendent of defendant at Fredericktown was written and the date of holding the directors’ meeting, the minutes of which are last above set out, the defendant’s properties, about the sale of which this controversy wages, were partially examined by one S. W. Hall, a mining engineer, in the employ at the time and acting for one George B. McManamon, who subsequently, on September 9, 1904, bought the entire property of defendant. McManamon is the (‘gentleman from Cleveland,” who is mentioned in the letter of plaintiff to Brickey of date May 5, 1904, supra. The subsequent transactions between plaintiff, whose dealings in the matter were handled by Ross, its secretary, and defendant, represented (as plaintiff contends, but defendant vehemently denies) by Brickey, and said McManamon, which at last culminated in the purchase of defendant’s properties by and their conveyance to McManamon, may be told in the latter’s own language:

“I am George B. McManamon to whom the property of the Catherine Lead Company was sold in September, 1904. I am acquainted with Mr. Ross, and with the property of the Catherine Lead Company.. In the spring of 1904 I received a circular issued by Mr. Ross describing some properties in Missouri, and I corresponded with Mr. Ross about that, and finally got Mr. Hall to come east and we met Mr. Ross here and went over to see the ‘Virginia Mine,’* located, I think, near the Frisco Road. That was prior to May 5, 1904. I first heard of the Catherine Lead Company while we were on the trip to see the Virginia and another mine. After turning down the ^properties which we went to see, Mr. Ross had spoken several times about a Catherine mine, and stating that he had some stock of that mine for sale — in the Catherine Lead Company. On the trip back from looking at those properties, we arranged to go to Mr. Ross’s office the next morning about the Catherine. That was about the 5th of May. That was the occasion upon which I met Mr. Brickey. Upon the arrival of myself and Mr. Hall- in Mr. Ross’s office, he communicated with Mr. Brickey and Mr. Brickey came over for the-purpose of taking up the matter of a possible purchase of the mining property there in Madison county;' and after some discussion of the property Mr. Brickey dictated a letter to Mr. Cox, superintendent of the mine, at Fredericktown, to give us access to the property, and it was upon that authority that I proceeded with Mr. Hall and Mr. Ross the next day to the property. On the following day Mr. Ross, Mr. Hall and myself went to Fredericktown to. look at the Catherine. Mr. Hall, my engineer, made an examination of the Catherine mine at that time for me. The price made to me for the Catherine mine was $300,000, I think. I did not purchase the mine at that time. We didn’t have time to examine it in the first place, and, of course, would not have purchased until we had made a satisfactory'examination of it. I think within two weeks I learned that they were figuring with other parties on it. I, then, for the time, dropped that property from any further consideration. I afterwards had further negotiations with Mr. Ross relative to other properties. When I was advised that the Catherine property had been sold to other parties I had no further negotiations with Mr. Ross relative to the Catherine property. I received the telegram dated May 12, 1904, sent to me at Cleveland, Ohio, by the Ham & Ham Zinc and Lead Investment Company, which Mr. Carter testified was dictated by Ross in his presence, and which was read to Mr. Brickey. That is the proposition coming from other parties which caused me to suspend negotiations at that time. I next took up the matter of purchasing the Catherine property about August 1, having received a letter from Mr. Hall stating that some one had come to him with reference- to- purchasing the Catherine property, and thought I had better come to St. Louis and go into the matter with him, which I did, and thereafter made an offer direct to the company for the property. I first • offered $185,000, and finally bought the property for $200,000, $60,000 cash and assuming $140,000 of bonds as part of that price. This offer was accepted after a meeting of the stockholders of the company. I would not have considered the purchase of this mine at the price of $300,000.”

From this excerpt it is seen that plaintiff was instrumental in bringing McManamon and defendant together, and in conveying to McManamon the fact that defendant’s properties were on the market. Further light is thrown upon the details of this phase of the case by the testimony of Hall, the mining engineer. He was called as a witness for plaintiff, and, among other things, said:

“I first had the fact that the Catherine property was for sale brought to my attention by Mr. Ross, through an .inquiry of mine made to him, outside of St. Louis. I came down here to look at an entirely different property altogether. I didn’t know anything about any Catherine property. That property was a failure, wasn’t what I wanted or expected to-find it at all. I then asked Mr. Ross if he knew of a lead mine in the State of Missouri that was for sale. He then mentioned that sometime previous to that he had an option, or his company had an option on the Catherine, but that it was his remembrances that that option had expired on the property; that when he came back to St. Louis he would see the parties owning the property and if-he could renew that option,, that if the price was right, possibly he might interest, us in that property and thereby make a sale. Mr. Ross was to look up this particular property he had mentioned and find out something about whether he-could renew an option or something that he had that had run out and let us know. He told Mr. McManamon and me what time to come up and we went to his ■office and he had Mr. Brickey come over there from somewhere, I don’t know where.”

As shown by the testimony of McManamon, conveyance of the property to him was had on September '9, 1904. This suit was filed September 8, 1909. In the meantime Brickey had died.

The theory of the defendant was that the contract. shown in evidence was the personal contract of Brickey to sell for him shares of stock held by Brickey in defendant corporation, and not a contract by Brickey ■as the president and agent of defendant to sell the properties of defendant.

As bearing out this theory of defense, the testimony of W. P. Carter, who was of counsel for defendant and its vice-president, but who was called as a witness by plaintiff, showed that Brickey had counselled and advised with the witness as to whether he (Brickey) was safe in agreeing to sell sixty per cent of the stock of defendant company and had been told by Carter that he was; that he (Carter) “would sell the whole capital stock short on these terms.” The amount of Brickey’s holdings of stock appears but vaguely. Beyond the fact that the witnesses “do not think” he owned sixty per cent, but “do not know” how much he owned except that he was “rather a large stockholder,” the record upon this point is satisfactorily indefinite.

Shortly after the directors’ meeting of May 13, 1904, plaintiff rendered a statement to “S. H. Brickey ■and Catherine Lead Company” for time and expenses In showing the mine to McManamon, amounting to the sum of $90.75. No attention being given to this •statement by either Brickey or Catherine Lead Company, the matter languished till September 22, 1904, after the sale to McManamon, when a statement and ■claim on defendant for commissions was sent to it by mail. No attention seems to have been paid to this statement, except that the fact of receiving it was mentioned by Brickey to Carter. After Brickey’s death, and almost .five years later to a day, this suit was filed.

On the trial, Judge Greorge H. Williams, then a circuit judge, but formerly of counsel in this matter for plaintiff, was called as a witness, and the following occurred:

“Q. Did you have any conversation with Mr. Brickey in the presence of Mr. Ross, Mr. McManamon, and possibly others, about September, 1904, in regard to the matter of the sale of the property of the Catherine Lead Co!
“Mr. Carter, of counsel for defendant, interposed and asked leave to examine the witness on voir dire, upon which it appeared that Judge Williams had been attorney for Mr. Ross and for the Ham & Ham Co. at the time, and that Brickey was since dead.
“Mr. Carter: The contract sought to be established was originally made with Mr. Brickey, who was president of the Catherine Lead Co. The purpose of Judge Williams’s visit was as the attorney for Ross, representing him in this particular matter. Now, our contention is that Mr. Brickey, being the agent of the corporation, and being dead, Judge Wililams is not competent to testify to any conversation had with Mr. Brickey. . . .
.“The witness replied that he had a conversation with Mr. Brickey. . . .
“The Court: I will have to sustain the objection as to what that conversation was.
“To which ruling of the court plaintiff then and there excepted. ’ ’

At the close of the testimony for the plaintiff the defendant demurred to the evidence, and again at the close of all of the evidence in the case defendant requested instructions for a peremptory verdict, which the court refused to give, and defendant saved its exceptions. For this error in so refusing peremptorily to instruct the jury to find for defendant, the court below granted a new trial to defendant. From this order granting a new trial on the grounds noted, plaintiff appeals. The question and its corollaries as to whether there was sufficient evidence to take the case to the jury, are the only points here involved, or necessary to be discussed with any seriousness in the subjoined opinion, which circumstance has made necessary a statement of facts inexcusably long.

I. The only contention of appellant with which we need concern ourselves, is as to whether there was. sufficient testimony on the first count to go to the jury. The respondent, who was the defendant below, contends that there is not. The court nisi took this view, and so holding granted defendant a new trial, on the ground as bluntly stated by the learned trial judge, that having gone again and again over the contract of Jánuary 21, 1904, he could not “malte out of it an authorization or direction of the defendant to the plaintiff to sell the real estate in question.” In passing, it may be said that the property and all of the property held by defendant consisted of 1560 acres of land, having thereon a “mill, tram and other improvements valued at about $60,-000 or more, ” including on said land, tenant houses and farm lands.

Before the learned trial judge may be convicted of error, two points must be held in favor of appellant’s contentions. The contract quoted must first be held to be the contract of the defendant and not the personal contract of Brickey; and second, it must be held to be an agreement to sell real estate and not. one to sell stock in a corporation: Clearly, should we be able to hold that it is an agreement for the sale of real estate, then by inference too clear for argument, the other proposition falls out of the case; because Avhile Brickey held stock in the defendant company, he had, so far as the record discloses, no real estate even measurably within the description set out in the contract.

. Keeping in mind that the contract under review was on a printed form, and that the words of description of the property to be sold and offered for sale, were written therein in ink, as follows: “Catherine Lead Company stock to the amount of at least (60%) sixty per cent, on a basis of. 50,000 shares, par value ($10) ten dollars per share,” jt is a little difficult to see why Brickey and plaintiff’s assignor should have gone to the trouble of making such a recital as this, when a mere description of the lands owned and their location, would have covered the contentions of plaintiff. Taking the view of plaintiff, it is also difficult to see why, if the real estate, of defendant was the property to be sold, that terms mentioned should have been set out as “on a basis of six per share — par value $10 per share.”

The other written parts of the contract are consistent both with the view that either stock or real estate was to be sold. For if corporate stock was offered, clearly the purchaser would- be desirous of knowing what property, and how much property the company issuing such stock held, so that some sort of estimate of value could be put on the stock.

Nor was this contract signed by defendants, or by S. Ii. Brickey as the president of defendant; it was simply signed by Brickey, in his individual name, without aught appearing to show, or even to create a suspicion that Brickey was acting otherwise than as an individual holder of stock, who desired to sell the same for sixty cents .on the dollar. Extrinsic evidence adduced on the trial lends color to the lattér view, for the testimony of the Avitness Carter shows that Brickey had Carter go to the office of plaintiff and look over the contract, and there inquired of Carter if he (Brickey) was safe in executing the contract. He was told by Carter that the latter considered him safe, for he (Carter) would sell all of the stock short at the same price.

A casual reading of the contract would seem to settle this case. It seems too plain for argument that the contract sued on is not the contract of defendant for the sale of its real properties, but is merely the contract of Brickey for the sale of stock thereof, held or controlled by him to the amount at least mentioned therein. The contract was good for more than 30,-000 shares; the purchaser consenting, it was good for less than 30,000 shares, at six dollars per share. Citation of authorities and argument can add not one whit to the view inevitably forced upon us by our inspection of the contract, and a bare statement of the facts settles the question. The view of the trial court that the contract was not upon its face that of defendant for the sale of its mining properties, was correct.

II. It is urged, however, that there was a ratification of this agreement by defendant corporation, that something was done by defendant £qe contract that of defendant. If this is so, we must perforce find it from the record, as the sole source of information available to us.

Turning to the record we find that the only bit of evidence lending any color to this contention is contained in the excerpt from the minutes of the directors’ meeting, set out in the statement, to-wit: “Mr. Brickey stated that Ham & Ham, who sent an engineer down to examine the property, telephoned him that their Mr. Ross would report at this meeting as to what the report was and what they proposed doing. Mr. Ross arrived and stated that the engineer, Mr. Hall, above referred to, had made report on the property, but he, Ross, did not show any written statement other than his own relative to the result of the examination. He was informed that the Carter proposition was under consideration, and if he intended presenting a proposition it would have to be accompanied by a cash payment greater than $1000, offered by Mr. Carter. This requirement he was unable to meet and toas excused front the meeting.”

This is all that appears from the minutes of the defendant corporation even squinting at ratification. So far from ratifying anything that Brickey did, or ratifying and maldng its own the written agreement or any agreement which Brickey had with plaintiff’s assignors, this entry closes by saying: “This requirement he was unable to meet and was excused from the meeting.” It is true that “when an authorized act of an agent of a corporation is clearly beneficial to the corporation, a presumption of ratification will arise from slight circumstances.” [Bank v. Bank, 107 Mo. 1. c. 145; 2 Morawetz on Private Corp. (2 Ed.), sec. 629.] But this is beside the question here. For confessedly, Brickey is not shown to have made any agreement with plaintiff’s assignors, except the one in writing, which we set out. We have seen that no sort of logic or reasoning can contort this written agreement into a contract for the sale of the real property of defendant. So, if there was a ratification by defendant corporation what was ratified? If we concede arguendo the application of- the contract to the property of defendant, and the ratification thereof by defendant, then we come to the serious question of fulfillment by plaintiff. If it applied and if it was ratified, how was it carried out? The contract fixed the sale price on a basis of $300,000; the property was sold for $200i,000!. The contract by large inference, expired March 21, 1904; the sale was not consummated till September 9, 1904. By the same inference a purchaser was to be found in sixty days; none was found till more than 100 days. When found this purchaser “dropped the property from further consideration. . . . and had negotiations with Mr. Ross relative to other properties;” and, though later he returned to the lure, did not buy till more than six months had elapsed, coming again to a consideration of purchasing the property at the behest of one Wagner.

Besides, the entry from the minutes of the directors’ meeting, which we quote herein, and the bare fact of a sale upon different terms and at a different price, of — we may be warranted in saying — wholly different property to a purchaser found by plaintiff’s assignor, there is utterly nothing in the record to indicate ratification. The state of the facts answers the contention, it seems to us. For it ought to be reasonably apparent that, unless upon the facts we can hold that the contract up for judgment was a contract for the sale of real estate, it would be well-nigh an impossibility to carve out of any state of facts subsequently arising anything approaching a ratification. As logically contend that a contract for the sale of a ship could be ratified into a contract for the sale of a camel, because forsooth poets sometimes floridly speak of the camel as a “ship of the desert.”

A mere statement of the conditions, facts and acts, requisite to create the implication of ratification (which is after all a branch of the doctrine of estoppel) will make apparent how far short of these requisites the facts here fall. In the case of Common Sense Mining Co. v. Taylor, 247 Mo. 1. c. 26, Graves, J., quoting 2 Thompson on Corporations, p. 1048, says:

“ ‘In the law of agency there is a rule that if one accepts the benefits of an unauthorized contract made in his behalf by another, he is bound by its terms the same as if he had entered into the contract in person or had expressly ratified it; provided of course that he had full knowledge of all the facts, and he is thereby estopped from repudiating the contract without restoring the benefits and putting the other party in statu quo. This principle is applicable, in its fullest sense, to corporations, which, from their nature, can act only through the instrumentality of agents. If, therefore, an officer of a corporation, or other person, assuming to have power to bind the corporation by a given contract, enters into the contract for the corporation, and the corporation receives the fruits of the contract, and retains them after acquiring knowledge of the. circumstances attending the making of the contract, it will thereby become estopped from after-wards rescinding or undoing the contract. In other words, by retaining the fruits of the unauthorized contract with knowledge of the circumstances which entitle it to its election either to affirm or disaffirm it, the corporation ratifies the contract and makes it good by adoption.’ ”

Applying what is said in the above excerpt, which though apropos, states the rule negatively as to the facts before us, we are constrained to disallow relief to appellant upon any reason growing out of ratification.

III. Appellant contends that the court erred in excluding the testimony of August Ross, who was the secretary of plaintiff company, and one stockholders, and who was offered to prove certain conversations with S. H. Brickey, tending to show ratification and rehabilitation and extension of the contract sued on. Appellant also contends that the court nisi erred in refusing to admit the testimony of Judge George H. Williams who was offered to show certain conversations with S. H. Brickey, deceased, on September 23, 1904, some two weeks after the property was sold and conveyed to McManamon. Judge Williams, when he had the alleged conversation with Brickey, was acting as attorney for plaintiff, presumably trying to collect the commission here sued for. "When he was offered as a witness he was one of the judges of the circuit court of the city of St. Louis.

"We think the court nisi was right in its ruling as to Ross and wrong as to its ruling as to Judge "Williams; that Ross’s testimony as offered and for the purpose offered, was incompetent, but that of Judge Williams, upon the objection urged at least, was competent. This is so for these reasons: At common law all persons interested in the result of a lawsuit were incompetent to testify. Our statute (section 6354) removes this incompetency as to parties in interest, except “that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead . . . , the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him.” The section further provides that in a derived action where he from whom the action is derived is, or would be incompetent, the deriver is also incompetent. This has been said to be “an enabling and not a disabling statute.” [Bates v. Forcht, 89 Mo. 1. c. 128.] Whether this is always true we need not stop to consider. This much is clear, that the object and intent of the statute and its proviso under consideration' was to make incompetent or leave incompetent, as at common law, a witness having by reason of his interest in the result of an action both the incentive to perjury and the opportunity, by perjury to- obtain an unfair or unconscionable advantage over the estate, or representatives of one, who being dead, can protect neither his property nor his word. But in order to be rendered incompetent the witness must be both interested and be a party to the contract or cause of action, which was made with a deceased person. (We are not here discussing the phase of a derived contract; this would of course require an additional exception.) If the witness has no interest in the proceeding or action, and if the contract or cause of action in issue and on trial was not made in whole or in part by him, or is not derived through the witness, he may testify, the death of. the other party notwithstanding. The negative or non-disqualifying phase of the rule is pretty clearly stated in the case of Savings Bank v. Slattery, 166 Mo. 1. c. 633, as follows:

“But counsel for defendants urge that Street, being also a stockholder, was an interested party and so incompetent to testify. It is sufficient answer to this to say that under our statute the interest of a witness alone does not.exclude him, where the other party is d^ead) That happens only because he and the deceased are both parties to the contract, or cause of action. In other words, the body of the statute removes the common-law disability arising out of interest, while the proviso confines the exclusion in case of the death of one party to a party to the contract or cause of action, so that a ‘party to the contract,’ as the term is used in the statute, is considered to mean the person who negotiated the contract, rather than the one in whose name and interest it was made. [Banking House v. Rood, 132 Mo. 256.]”

Applying these views to the condition at bar and keeping in mind that under the facts the recovery here cannot be based directly on the contract set out, but must be bottomed, if upon any consideration it will lie, upon something done, or said, or omitted to be done or said, by Brickey, as president of defendant in Ms dealings wilh Ross after the written contract was made, it will be reasonably clear that Ross’was not a competent witness, whatever might have been the condition, if a recovery could be predicated directly on the written contract. [Banking House v. Rood, 132 Mo. 1. c. 263.]

Conceding then that Judge Williams was competent as a witness, since he had no interest in the action contingent, derived or direct, and that his rejection as a witness was error, was it such error as to hurt plaintiff upon the facts here. We think not, for the reason that the rejection of Judge Williams notwithstanding, plaintiff got a verdict from the jury. Nor was this verdict set aside by the court for any reason even remotely growing out of the rejection of Judge Williams’s testimony. We cannot allow this point to appellant.

IV. During the trial many objections to the offering of testimony were made by defendant’s counsel, couched in language of which , , , ’ , . „ . . the below excerpt is a fair sample:

“Mr. Carter: We object to this witness testifying further, because it appears already that he is the representative of plaintiff in this case, and that Mr. Brickey, the president of the defendant company, who made this contract, is dead. This witness is not qualified to testify in this case upon the showing already made.”

Plaintiff contends that these objections (of which, having counted them, plaintiff’s learned counsel says nine were made) are admissions of the agency of Brickey and of the fact that what Brickey did was done for the defendant company, and not as defendant contends, by Brickey for himself as an individual.

It is but a begging of the question to thus insist upon the facts here. Defendant surely had the right to try the case upon the theory of plaintiff itself. Upon the theory of defendant that the contract was the personal contract of Brickey, had the suit been against Brickey’s representatives, the same objection could have been urged without doubt or question. It is not the privilege of either party in an action either at law or in equity, to assume that the position of such' party is so far right as that the other party may not question it (compare Patton v. Fox, 169 Mo. 97); nor may one party object because the other party gives battle upon the identical field which the opposing side has chosen. Issues are issues till they are proven, and it would be in a way a serious reflection upon the intelligence both of courts and of juries, if with a clean-cut .defense before them, they were swayed by the mere form of an objection, which but followed the plaintiff’s theory of the case. Did defendant contemplate that either of the nine objections made by it should be a solemn admission which would overturn its defense as set up in its answer? The question needs no answer.

In our view of the case the learned judge, nisi, was right in granting a new trial, and the case should be affirmed, and remanded. It is so ordered.

Brown, P. J., and Walker, J., concur.