source: Caselaw Access Project

author: REVELLE, J. GRAVES, J.

license: Public Domain

text:
    THE STATE v. RICHARD WADE, Appellant.
    In Banc,
    March 1, 1916.
    1. I INFORMATION: Sufficiency of Charge. In criminal pleadings nothing material can be left to intendment or implication; and where a crime is created by statute the charge must be such as to specifically bring the accused within its material words.
    2. -:--: Aided By Proof. The State cannot prove what it has not charged; it cannot by incompetent evidence supply an absent allegation. Even though the evidence establishes an offense forbidden by the statute, a conviction cannot stand if the allegations are insufficient to point out any crime denounced by it.

      3. --: Ejusdem Generis: Gambling Device. When an enumeration of certain specified things in a statute is followed by general words or phrases, they are deemed to mean things of the same class and kind as those enumerated, and do not include things wholly different from those specifically mentioned. Section 4750, .Revised Statutes 1909, condemning the setting up and keeping of certain enumerated gambling devices, ' or “any kind of gambling table or gambling device, adapted, devised, and designed, for the purpose of playing any game of chance for money,” is not broad enough to .include all gambling devices regardless of their character, but does include all those of a kindred nature and similar kind to those enumerated.
    4. -: -: -: Craps Table: Must Be Described. A table, duly marked and arranged for the purpose, on which the game of craps is played by means of dice for money or property, is within the purview of the statute; but it is not specifically enumerated therein, and therefore the rule of ejusdem generis applies, and the information must contain sufficient averments showing it to belong to the enumerated class. An information simply charging that the defendant set up and kept “a certain table and gambling device commonly called a crap table,” with no allegation defining a crap table, or of what it consists, or how designed, or how and by what means the game of craps is played, is not sufficient to support a conviction, even though' the evidence establishes the fact that the tables which were operated by defendant are of the class forbidden by the statute. Nor is the general allegation that the crap table was “a gambling device adapted, devised and designed for the purpose of playing games of chance for money and property” sufficiently descriptive of a crap table to supply an allegation necessary to show that such table is of a kindred nature and similar kind to one of those enumerated in the statute. [Overruling on this point State v. Rosenblatt, 185 Mo. 114; State, v. Locket, 188 Mo. 415; State v. Holden, 203 Mo. 581; State v. Lee, 228 Mo. 480.]
    6. GAMBLING DEVICE: Commonly Known: Proof: Variance. Where the information charges that the gambling table which defendant set up is one “commonly known as a crap table,” the State must show that there is a table commonly so known, and that it was this particular kind of table that defendant set up and kept; and where all the witnesses testify that the tables which defendant maintained and operated were not of the kind which they commonly knew as crap tables, and that a crap table is of a radically different design and construction, a conviction cannot stand.
    6. -: Location: Street Number: Variance. The information charged that defendant set up a craps table “at 118% North Fifth street.” The evidence tended to prove that defendant set up gambling tables in the basement of premises designated as 118 North Fifth street, the sole available entrance thereto being under a barber shop at said number, from which initial point a tunnel, equipped with a series of automatic doors, led to the room where the tables were; that the premises and entrance were commonly known as 118% North Fifth street; that defendant’s mail in accordance with his direction, was addressed to 118% North Fifth Street; and that when arrested defendant gave that number as his address.

      Held, by REVELLE, X, with whom FARIS and BLAIR, JX, concur, that there is no fatal variance between the allegation and proof; that it was unnecessary to allege the exact location, since it did not relate to a constitutive part of the offense, and if a variance a.t all it is cured by Sec. 5114, R. S. 1909.

      Held, by GRAVES, . J., with whom WOODSON, C. J., concurs, that the variance is not cured by the statute, but is fatal to the judgment. WALKER and BOND, JJ., do not concur with either opinion.
    Appeal from Buchanan Criminal Court. — lion. Thomas F. Ryan, Judge.
    Reversed and remanded.

      Kay G. Porter, Charles F. Strop and Eugene SilvermaM for appellant.
    (1) It is the inflexible rule in criminal pleadings that in all indictments or informations for felonies, nothing can he left to intendment or implication, and judged hv this rule, the information in the present case is insufficient. The indictment nowhere alleges the nature of the game which was played; it is not alleged that the game of craps was played; it is not alleged that a game of chance was played, and fails to allege that any game was played for either money or property. As sustaining the general principles which should govern the present case, see State v. Keating, 202 Mo. 204, and many cases cited therein. State v. Evans, 128 Mo. 406; State v'. Birks, 199 Mo. 271. (2) It is no answer to the above contention that the information follows the language of the statute. The rule that an information is sufficient when it follows the language of the statute has no application excepting in the cases where the statute so far individuates the offence that the offender has proper notice from the adoption of the statutory forms what the offence he is to be tried for really is. In no other case is it sufficient to follow the words of the statute. It is no more allowable under a statutory charge to put the defendant on trial without specification of the offence than if would be on a common-law charge. Wharton’s Criminal Pleading and Practice, sec. 220; Sherwood’s Commentaries on Crim. Law of Missouri, 638; State v. Hayward, 83 Mo. 299; Ex parte See, 241 Mo. 295; State v. Kruger, 134 Mo. 274; State v. Thierauf, 167 Mo. 442. (3) Not only was there no allegation that the game of craps ■was played, but there is no allegation as to what constitutes the game of craps. The information should have alleged that the game of craps was a game played with dice. This court has recently held that it would not take judicial notice that poker was a game played with cards and chips; it follows and for like reason, that this court will not take judicial knowledge that craps was played with dice. State v. Solon, 247 Mo. 672. (4) There was a fatal variance between the information and proof offered. The information charged the defendant with setting up ¿ table commonly called a crap table. The proof was that the table set up was an ordinary pool table. The uncontradicted testimony was that a crap table, commonly called, which is the allegation, was a certain' distinctive kind of table and established for a specific purpose, whereas, the table described in evidence was a different kind of table, and not such a table as is ordinarily used for gaming purposes. (5) The accepted doctrine is that where the place is stated not as venue, but as a matter of local description, a variance between the description in the indictment and the evidence will be fatal. Applying this rule to the present case, there was a fatal variance. The uncontradicted testimony was that the device complained of was located in the basement of the building known as 424 Francis street, a separate and distinct number, and a separate and distinct building, State v. Kelley, 29 Atl. (N. H.) 843; Withers w. State, 17 S. W. (Tex.) 725; Bernero v. Commonwealth, 116 S. W. (Ky.) 312; Greenwood v. People, 83 Pac. 646; Bryant v. State, 62 Ark. 460; Moore v. State, 12 Ohio, 390; State v. O’Neal, 124 N. W. 69; State v. Crogan, 8 Iowa, 523; McAllister v. State, 116 S. W. (Tex.) 583; Ball v. Staté, 26 Ind. 155; Clark v. Commonwealth, 16 B. Mon. (Ky.) 216.; People v. Slater, 5 Hill, 401; Lew v. State, 42 So. (Miss.) 875; Johnson v. State, 58 S. E. 265; State v. Kelly, 132 N. W. (*N. D.) 223. (6) If it be conceded, which we do not, that there was any evidence tending to show that the basement of the premises' ordinarily known as 118 North Fifth street was known as 118% North Fifth street, yet the great weight of the testimony and all of the credible testimony was to the effect that 118i% North Fifth referred to the second story, and undoubtedly the jury upon the testimony in the case, had room to find that 118%' was the second story, in which event there should have been an instruction to the jury to have further assisted the jury, to the effect that unless the offence was committed at 118% North Fifth street, the defendant should be acquitted. State v. Conway, 241 Mo. 271; R. S. 1909, sec. 5231; State v. Nicholas, 222 Mo. 434; State v. Taylor, 118 Mo. 153; State v. Banks, 73 Mo. 592; State v. Palmer, 88 Mo. 568.

      John T. Barker, Attorney-General, and Lee B. Ewing, Assistant Attorney-General, for respondent.
    (1) The information herein is good. Sec. 4756, R. S. 1909; State v. Lee, 228 Mo. 480; State v. Holden, 203 Mo. 582; State v. Rosenblatt, 185 Mo. 120. (2) The instructions are in approved form and fully cover all the law of the case. State v. Lee, 228 Mo. 480; State v. Mathis, 206 Mo. 604; State v. Holden, 203 Mo. 584.
   REVELLE, J.

On the 2nd day of March, 1914, the prosecuting attorney of Buchanan County filed in the criminal court of that county an information, which, omitting formal parts, is as follows:

“That at said county Richard Wade at 118% North Fifth Street, in the city of St. Joseph . . . did then and there wilfully, unlawfully and feloniously set up and keep a certain table and gambling device commonly called a crap table, which said crap table was then §nd there and on said other days and times a gambling device adapted, devised and designed for the purpose of playing games of chance for money and property; and did then and there . . . unlawfully and feloniously induce, entice and permit certain persons, to-wit ... .to bet and play at and upon a game played on and by means of .such gambling device. ’ ’

On this information defendant was tried and convicted, and his punishment assessed at four years’ imprisonment in the penitentiary. The judgment was affirmed Hy Division Two, but, owing to the dissent of Fares, J., and upon defendant’s application, the cause was transferred to Court In Banc.

The evidence adduced by the State tends to prove that defendant, as tenant, occupied and had under his exclusive control, the basement of the premises designated 118 North Fifth Street, in the city of St. Joseph. The particular basement room in which the alleged gambling device was set up and kept was under a restaurant fronting on Francis street, the sole available entrance thereto being under a barber shop at 118 North Fifth Street. From this initial point of entrance a tunnel or underground passageway led to the room-in question. The tunnel was equipped with a series of doors, which closed automatically through the operation of certain convenient and ready devices. A system of electric signals had been duly installed in order to warn of the approach of undesirable persons. In the room, besides some other furniture and fixtures, were two pool tables, on each of which was chalked off what is referred to in the evidence as a “crap game layout.” The evidence also discloses that in this room was a full equipment for pool tables, such as racks, balls and cues. The “crap game lay-out” is described as certain chalk marks with numbers thereon at different points.

On the 7th of February, 1914, when this room was raided by the officers, thirty or forty persons were found in the room, some of whom were engaged at the time in'playing what is called the “game of craps,” which is described as a game played with dice.- At that time there was about $300 in money found on the tables. One table was in charge of and being operated by Frank Dorsal, and the other by William Garnett, both of whom were in the employ of defendant. Defendant was at the cigar counter in another part of the room.

A deputy sheriff, who had been a police officer for fourteen years, and two of defendant’s employees,, testified that the premises and the entrance thereto were commonly known as 118% North Fifth Street. The evidence also discloses that defendant’s mail, and that of his employees, in accordance with his directions, was addressed to 118% North Fifth Street, and, when arrested, defendant gave this number as his address.

The State’s witnesses testified to their knowledge and familiarity with what is commonly known as • a “crap table,” and stated that the pool tables with the “crap lay-out” thereon were not such tables. All witnesses for the State testified, however, that the game , of craps was, in point of fact, played on such tables.

The defendant offered some evidence tending to. show that there was no such nrimber as 118% North Fifth Street in the city of St. Joseph, and that if there were snch a number it referred to the second story of the building at 118 North Fifth Street, and not to the basement in which defendant was conducting his business.

Defendant also offered a picture of a table which had been identified by the State’s witnesses as a correct representation of the table commonly known as a “crap table,” and this discloses no similarity between such a table and the one which the witnesses described as being kept by defendant.

I. The record discloses several assignments of error, the most important being the challenge to the sufficiency of the information. In the absence of a valid and sufficient charge a judgment cannot stand, and, under such circumstances, the question of a defendant’s guilt or innocence is not food for the judicial mind. The organic law entitles every person charged with crime to be informed of the nature and cause of the accusation against him, and, in keeping with the spirit of this salutary and fundamental principle of justice, courts have evolved an inflexible rule that in criminal pleading nothing material can be left to intendment or implication. Where a crime is created by statute, the charge must be such as to specifically bring the accused within the material words thereof. One is not required to wait until the State’s evidence is in to know whether he is charged, with a crime. This much at least must appear from the allegations of the indictment or information — indeed, the State cannot prove what it has not properly alleged, and particularly can it not supply by incompetent evidence an absent allegation in the charge. We do not allow this even in civil pleading and practice, although, in such cases, we have not the same constitutional inhibition as we have in criminal cases.

The information in this canse is bottomed on section 4750, Revised Statutes 1909, which is as follows:

“Every person who shall set up or keep any table or gaming device commonly called ABC, faro bank, E 0, roulette, equality, keno, slot machine, stand or device of whatever pattern, kind or make, or however worked, operated or manipulated, or any kind of gambling table or gambling device, adapted, devised and designed for the purpose of playing any game of chance for money or property and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling, device, or at or upon any game played or by means of such table or gambling device or on the side or against the keeper thereof, shall, on conviction,” etc.

It will be observed that the Legislature first specifically names and denounces certain tables and gambling devices, thus giving them a legal signification, and then proceeds, in general terms, to level its pronouncement against “any kind of gambling table or gambling device adapted, devised and designed for the purpose of playing any game of chance for money or property and shall induce, entice or permit any person to bet or play at or upon any such gaming table or gambling device,” etc.

In construing statutes we .have so frequently applied the familiar rule of ejusdem generis, that we would not now be warranted in departing therefrom. We have said this doctrine meant that when an enumeration of certain specified things in a statute is followed by general words or phrases, such words or phrases of general description shall be deemed to mean things of the same class and kind, and not include things wholly different from those specifically mentioned, or otherwise expressed; that when general words follow particular words they must be construed as applicable only to the things of the same general class as the particular words by which they are preceded.

Although, as said by Judge Faris in State v. Solon, 247 Mo. 672, when discussing the present section (l. c. 683), “Clearly this section has been by construction strained almost to the breaking point,” nevertheless, this court has, at all times, declared, in determining the devices to which it is applicable, that it recognized the ejusdem generis rule.

In State v. Rosenblatt, 185 Mo. 114, Judge Gantt said: “ ‘Craps’ are not named and therefore do not have a legal signification within the meaning of the statute, but if prohibited at all must come within the general prohibition of the section. Conceding that all other gambling tables and devices not specifically named must, under the doctrine ejusdem generis, be of the same general class with those devices specifically named, we think there can be no doubt that ... a crap table is of that class.”

In State v. Locket, 188 Mo. l. c. 422, Judge Fox, in passing upon the same question approvingly quotes this language from Judge Gantt.

In State v. Gilmore, 98 Mo. 206, this court held that a pack of playing cards, although used for playing games for money or property, was not a gambling device within the meaning of this section, the court tersely stating that any other construction is condemned by the rule of ejusdem generis.

In State v. Lemon, 46 Mo. 375, the statute was declared inapplicable to a horse race; and in State v. Bryant, 90 Mo. 534, it was held that a gun and a target were not of a kindred nature and similar kind to those enumerated, and were, therefore, not within the purview of the act.

In the recent case of State v. Solon, 247 Mo. 672, it was held that the court will not take judicial notice that poker is a game of chance, and that where there is no evidence that the game of poker alleged to have been played on the table was played with cards and that chips or other gambling paraphernalia were used, a demurrer to the evidence should be sustained,since it is not sufficient to show that a game of poker was played upon an ordinary hotel dining table, and that defendant acted as “banker” therein and actually took a “rake-off” therefrom.

In State v. Patton, 255 Mo. l. c. 261, the court said: “In the case of State v. Solon, supra, we labored to show the elements which distinguish the felony of setting up a gambling device, from those which go to make up the ordinary misdemeanor of gaming. We often find a dangerous twilight zone where the facts so imperceptibly shade into a felony on the one side and into a misdemeanor on the other, that it is almost impossible to distinguish the' line of demarcation. The Legislature has the right to say that a pack of cards carried by a traveler; a writing table, or a washstand in a guest room of an inn; an. idle hour, an idle friend or two and a game of five-cent ante, make a crime meet for the taint of felony and two years in the penitentiary. But they have not. so written it; neither will we. ’ ’

' From these cases it is clear that this statute is not broad enough to, and does not, include, the setting up or keeping of every and all kinds of gambling.deviees, regardless of their character, but is leveled against only those of a certain class.

We yield to the holding in the case of State v. Rosenblatt, 185 Mo. 114; State v. Lee, 228 Mo. 480; State v. Holden, 203 Mo. 581; and State v. Locket, 188 Mo. 415, that a table, duly marked and arranged for the purpose, on which the game of craps is played by means of dice for money or property, is within the purview of the section.

■We further find from the evidence in this case that the tables operated by defendant are of the class forbidden by this section, but it is by virtue of the evidenoe alone, and not the information, that we are able to so. determine. The State proved more than it alleged. In these days of reform this might be sufficient to warrant an affirmance of the judgment were it not for what seems an insurmountable obstacle, namely: the constitutional provision prohibiting a conviction except upon a valid and sufficient charge. As heretofore stated, the tables which the evidence shows defendant maintained are not among those enumerated by the statute, but fall within the general terms thereof. Where the offense charged is the setting up and keeping of the gaming tables enumerated no more need be averred, for the statute, in specific terms, denounces that as a penal offense. In such cases it is a familiar rule that it is sufficient to charge the offense in the words of the statute, but where the device charged is not among those enumerated, must there not be, recognizing the rule of ejusdem generis, sufficient averments showing it to be one belonging to the enumerated class, and, therefore, within the general inhibition? Absent this, can the defendant be said to be constitutionally charged with a crime? Must not the indictment show on its face, and from its allegations, that the thing for which an accused is placed upon trial comes within the definition of the statute? Only games of a certain distinctive character are denounced by this- section, and this is of the very essence of the offense. The correct rule is stated in 20 Cyc. 906, as follow's: “The general rule is that an indictment for keeping, setting up, or exhibiting a gaming-table or other gambling device is sufficient if it follows the language of the statute. But where the indictment alleges the keeping of 'other implements or gambling devices than those named in the act, they should be sufficiently described to show them to be gambling tables or devices within the purview of the statute.” This doctrine was clearly recognized in the case of State v. Etchman, 184 Mo. 193, the opinion in that case being written by Judge Fox, who also wrote the opinion in State v. Locket, 188 Mo. 415, which will be noticed later.

The present information charges that defendant set up and kept “a certain table and gambling device commonly called a crap table. ’ ’ There is no allegation defining a crap table or of what it consists, or how designed, or how and by what means the game of craps is played — in short, there is no allegation bringing it within the class of the enumerated devices, unless (first) we take judicial notice of what constitutes a crap table, and how the game of craps is played; or (second) unless the general allegation that it was “a gambling device adapted, devised and designed for the purpose of playing games of chance for money or property” is sufficiently descriptive thereof to supply the missing information.

As to the first proposition, we have abundant authority that we do not so judicially know (State v. Solon, 247 Mo. 672; State v. Etchman, 184 Mo. 193), and this soft impeachment we also on other and purely personal grounds deny.

As to the second proposition, it is sufficient to say that the allegatioin is more in the nature of a conclusion than a statement of fact. [State ex rel. v. Railroad, 240 Mo. l. c. 50.] It can,’with fitness, be applied to and be said to be equally descriptive of a pack of playing cards (State v. Gilmore, supra), a poker table without other paraphernalia (State v. Solon, supra), gun and target (State v. Bryant, supra), a horse race (State v. Lemon, supra); or, in fact, any of the “gaming tables and devices” included and prohibited by the misdemeanor section, to-wit: Section 4753, Revised Statutes 1909. In truth, substantially the same language is used and necessary when charging an offense under the misdemeanor section (State v. Howell, 83 Mo. App. 198); so the use of that phrase alone cannot possibly bring the alleged offense within the definítion of the felony statute. Something more evidently is required. In State v. Miller, 132 Mo. 297, this court said: ‘ ‘ ‘ The statutory indictment must specify on its face “the criminal nature and degree of the offense . . . and also the particular facts and circumstances which render the defendant guilty of that offense.” ’ [1 Bishop, Crim. Proc. (3 Ed.), sec. 625.]” See also State v. Terry, 109 Mo. 601.

In discussing a statute in substance like ours, and an indictment similar to the one at hand, it is said in Huff v. Commonwealth, 14 Gratt. 648: “Where the offense charged is for keeping and exhibiting a game not enumerated, there must be some averment showing it to be one of the unequal games belonging to the same class with the enumerated games. . . . The charge that the game is.unlawful does not cure the defect. The offense must be so charged as to appear to ■be unlawful;' otherwise, the allegation that an act was unlawful, would dispense with all averments showing it was unlawful. ’ ’

While the employment of the general words heretofore quoted are, under another rule of construction, essential to a valid charge, they cannot supply other material allegations of fact.

In the case of State v. Solon, supra, suppose the indictment had not alleged the element of which the court found there was no evidence, namely: the means by which poker is played, and which caused the reversal thereof, should defendant have been put upon trial? And yet without so alleging the indictment would have been just as good as the one in the instant case. Must we impute to a defendant a knowledge of what constitutes a poker table or a crap table and how they are operated when we judicially disclaim such knowledge? Is he not entitled to be advised of this by the indictment?

Our conclusion is that the information in this case is wholly insufficient, and in this we are sustained by both logic and the weight of authority. It has been so held in Tummins v. State, 18 Tex. App. 13; Huff v. Commonwealth, 14 Gratt. 648, and numerous other cases.

It is true that the present information has heretofore been held sufficient by this court, and this alone is responsible for our hesitancy to hold to the contrary, but we have frequently said that a question of law is not settled until it has been correctly decided.

In the first case (State v. Rosenblatt, 185 Mo. 114) there is a brief discussion of the indictment, but an analysis thereof discloses that the conclusion that the indictment is sufficient is predicated upon the statement that the statute under discussion is broad enough to and does, include the setting up and keeping of all devices which may be used for playing games of chance. "With this in mind, the court held that the statute individuated the offense, and that it was unnecessary to allege more than the words of the statute. Further consideration of this case indicates a glaring inconsistency. In discussing and determining thé character of games' and devices to which the statute is applicable-the court, as heretofore stated, recognized the rule of ejusdem generis, but when it came to determining the sufficiency of the charge, the court expressed the opposite view and held it applicable to all-devices. This error on the part of the court is agnin apparent from what it says at page 123, when attempting to distinguish our statute and the indictment then under discussion from the case of Huff v. Commonwealth, 14 Gratt. 648. The court in this connection said: “It was not necessary to allege that chuck-a-luck or craps or both were of a like kind of gambling device as A B C, faro bank, E O, roulette, keno or equality. The decision in Huff v. Commonwealth, 14 Gratt. 648, was predicated on a statute which, after designating certain gambling devices, proceeded to say, ‘or a table of like kind.’ No such words appear in section 2194, Revised Statutes 1899.”

In the case of Huff v. Commonwealth, supra, the court held that an indictment in the form of the instant one was insufficient for the reasons heretofore pointed out. It is clear that the statute in that case, by the use of the words “ora table of like kind, ’ ’ added nothing whatever thereto, and did not change the construction which the courts would have placed thereon even in their absence. In that case the Legislature merely expressed in the statute that which we attach in such cases by construction, and the distinction which this court attempted to make in the Rosenblatt case only emphasizes the incorrectness of the decision.

The cases of State v. Locket, State v. Holden and State v. Lee, supra, wei;e decided upon the strength of the Rosenblatt case, and the opinions therein contain nothing throwing light on this question. These opinions were written by Judges Gantt and Fox, and it is not amiss to note that in the case of State v. Etchman, 184 Mo. 193, Judge Fox wrote the opinion, and in it Judge Gantt concurred. In that case the indictment charged the setting up of a roulette wheel, where the statute denounces, among other devices, a roulette table. In that case the indictment was held insufficient, the court saying: “It may be said that those who are familiar with‘the game'know that ‘roulette wheeP has reference to ‘roulette table.’ That does not meet the difficulty.” (So might it be said by those familiar with a crap table that it is of the same class of devices as those named in the statute, but “that does not meet the difficulty.”) The opinion in this case was rendered at the same term as was the opinion in the Rosenblatt case, and is clearly inconsistent therewith.. Neither in the Rosenblatt, Locket, Holden or Lee cases is there any satisfactory authority cited sustaining the conclusion that the indictments therein are sufficient, but,- in our opinion, such authorities as are cited, when analyzed, tend to the contrary. To the extent that these ' cases hold an information or indictment in the form of the one in this case sufficient they should be and are overruled.

II. This record also presents another question requiring consideration. In prosecuting alleged offenders the State must not take inconsistent positions. If, as the State contends, the information in this case is rendered sufficient by the description that the table is one commonly Itnoivn as a crap table, was it hot incumbent upon the State to show that there is a table so commonly known, ' and that it was this particular kind of -a table that defendant set up and kept? Each witness for the State who testified relative to this subject stated that the tables which defendant maintained and operated were not of the kind which they commonly knqw as a crap table. To the contrary, the tables are of radically different design and construction, as is evidenced by the uncontradicted -exhibit offered by defendant, and positively identified by the State’s witnesses. If there is such a table as has, through common and popular usage, become generally known as a crap table, and defendant’s exhibit truly and correctly represents the same, this defendant could not plead as a bar to a subsequent prosecution his conviction of having set- up and kept the tables which the evidence here shows he did. This only emphasizes the importance and necessity of fairly describing the character of the device intended to be charged. Under this information the most that could be said is, that defendant was called upon to answer the charge of keeping a table which had become generally known as a crap table. It did not require him to answer to the charge of maintaining tables of an -entirely different.design and construction.

It follows that if the information in this case were held sufficient we would necessarily have to hold that the proof disclosed a fatal variance and that the judgment could not stand. We have gone to a considerable extent in holding that section 5114, Revised Statutes 1909, cured questions of variance, but in none of our former holdings have we gone so far as to hold that a variance of this character was thereby cured.

Not only was there no, evidence upon which a jury could find that the tables kept by defendant were of , the kind commonly known as a crap table, but the court instructed, in effect, that this was immaterial.

III. It is further urged that there is a fatal vari- ■ anee between the charge and proof as to the location of the room in which the alleged games were played. Relative to this, it is sufficient to say that several witnesses for the State testified positively that this place was generally known and recogm’zed by the number and description which the information alleges, and was so designated by defendant himself, and from this the jury was warranted in finding that the room was located as alleged. While it is unnecessary for the purposes of this case to go further, nevertheless, it is my opinion that if such a variance were disclosed it is one of that type that is cured by section 5114, Revised Statutes 1909. We have repeatedly and uniformly so held. [State v. Carragin, 210 Mo. l. c. 371; State v. Barker, 64 Mo. l. c. 285; State v. Smith, 80 Mo. l. c. 520; State v. Harl, 137 Mo. l. c. 256; State v. Sharp, 106 Mo. l. c. 109; State v. Waters, 144 Mo. l. c. 347; State v. Wammack, 70 Mo. l. c. 411; State v. Sharp, 71 Mo. l. c. 221; State v. Ward, 74 Mo. l. c. 255; State v. Nelson, 101 Mo. l. c. 482; State v. Dale, 141 Mo. l. c. 287; State v. Sharpless, 212 Mo. l. c. 202.] The allegation of the exact location of the place where the game was conducted was unnecessary and did not relate to any constituent part of the offense. Unless the above statute was held to apply to instances of this character- it would, in effect, be meaningless.

IY. The record discloses several other assignments of error, but, since they relate to matters which the State can easily guard against on a retrial, we deem it unnecessary to discuss or decide them.

For the reasons heretofore assigned the judgment is reversed, and, in order to enable the State, if it sees fit, to further proceed on a valid and sufficient charge,

the cause is remanded.

Faris and Blair, JJ., concur; Woodson, G. J., and Graves, J., concur in separate opinion by Graves, J.; Bond and Walker, JJ., dissent.

GRAVES, J.

(concurring) — I concur in all of my brother’s opinion except paragraph three. In that I neither concur in the law announced nor the facts stated. I think the facts shown as to where these tables were found are at variance with the charge in the information, and therefore fatal to the judgment here. Nor do I agree that such a variance is cured by the statute named. I therefore not only agree that the judgment should be reversed for the reasons stated by the majority opinion, but for the additional reason suggested above.

Woodson, G. J., concurs in these views.


author: FARIS, J.

text:
    IN RE MINGO DRAINAGE DISTRICT. In the Matter of the Articles of Association and Petition of GEORGE S. DEAN et al. for the Incorporation of MINGO DRAINAGE DISTRICT v. B. F. WILSON et al., Appellants.
    In Banc,
    March 1, 1916.
    1. DRAINAGE DISTRICT: Construction of Statutes. Drainage and reclamation statutes are to be liberally construed.
    2. -: Objections. Objections to the organization of the proposed drainage district, timely filed by any person other • than the signers of the proposed articles, inure to the benefit of all non-signing owners of property liable to taxation in the proposed district.
    3. -: Ownership of Land: How Shown. The matter of title of lands within the proposed drainage district is only incidental, and only a prima-facie showing of ownership is required, where no attempt is made to' show that the signers of the articles are not owners. The law does not require proof of ownership to be made by deraignment from the Government down to the present owners, by offering muniments of title or certified copies thereof; secondary evidence of any kind that establishes a prima-facie ownership is sufficient for the purposes of incorporation to constitute the signer of the articles an owner, in the absence of proof to the contrary.
    4. -: -: Specific Objection: Should Be Pleaded. If certain persons who are not owners of land sign the articles of incorporation for some fraudulent or ulterior motive, the objectors should deny by name that they are owners and upon the hearing break down by evidence their prima-facie showing of ownership; or, at least, deny generally that divers persons who signed the petition were competent signers or owners of land, and destroy the prima-facie case by proof.
    5. -: Inclusion of Hills. The inclusion of hills and other high lands which do not overflow within the drainage district ■does- not necessarily render the incorporation invalid. If such lands are not benefited and only by their inclusion a competent number of petitioners is obtained, that would have the effect to oust jurisdiction; but it may well be that that drainage of wet, low or swamp lands lying around and about will so far benefit hills and other high land in' matters of sanitation and easier egress and ingress as to render it entirely equitable • that they should bear a modicum of the cost of draining the low land.

      6. -: Petitioner: President of Corporation. An objection, made only by other landowners, that the president of a corporation owning land in the proposed district had no authority, in the name of the company, to sign the articles of incorporation without being specifically authorized to do so by the board of directors or by a vote of its stockholders, is not allowed.
    7. --: -: Attorney in Fact. Likewise, an objection by other landowners only, that a certain person who held a power of attorney to act generally for a corporation which owned certain lands in the proposed district had no authority to sign the articles, is disallowed.
    8. -: -: Holder of Deed in Escrow. And an objection by the owners of other land only that a certain person who had contracted to buy the land for which he signed the name of the then apparent owner, was not authorized to sign . the articles, is disallowed, the fact being that the deed to him was then actually executed and lying in escrow and before the hearing was taken down by him and recorded.
    9. -: Title of Case. Prior to a final judgment incorporating a drainage district the title of the case on appeal should run thus: “In re Petition for Incorporation of Mingo Drainage: District; George S. Dean et al., Petitioners, Respondents, v. B. F. "Wilson et al., Appellants.”
    10. -: -: Right to Sue. After the decree incorporating a drainage district has been made final it can sue and be sued in its own corporate name.
    Appeal from Stoddard Circuit Court. — Hon. W. 8. G. Walker, Judge.
    AFFIRMED'.

      Brown, Pradt & Genrich and V. V. Ing for appellants.
    No persons but those who are owners of swamp, wet or overflowed lands or lands subject to overflow are qualified signers and petitioners in a proceeding to organize and incorporate a drainage district. Laws 1913, p. 233, sec. 2. The acreage majority must be swamp, wet or overflowed lands or lands subject to overflow, and such land must lie in a contiguous body. Laws 1913, p. 233, see. 2. Owners of real estate in the sense in which the tema “owners” is used in the act under which this proceeding is prosecuted, are the owners of the freehold estate as appears by the deed record. Laws 1913’, p. 253, sec. 39. A freehold estate in lands is an estate vested and cannot be established by oral statements of witnesses. Turner v. Williams, 76 Mo. 617. The deed record is the best evidence of the ownership of the lands in the drainage district. Laws 1913, sec. 39, p. 253. Where the best evidence is available it must be used. Secs. 2818, 2819, R. S. 1909. The second best evidence (a copy of the conveyance or a copy of the record) is not admissible unless such copy is under the oath of some person knowing the requisite facts, or the certificate of the recorder under his official seal. ■Sec. 28191, R. S. 1909. All of the testimony of witnesses .as to what they say they found relative to the ownership of the lands in the drainage district, and their opinions relative thereto, by examination of the abstract books of Weber Abstract, Land & Loan Company concerning lands in Stoddard County, was improperly admitted, because the abstract books themselves could not have been admitted in evidence (if they had been offered, which was not done) because there was no evidence whatever as to the correctness of the abstract books by persons who knew. Einstein v. Land & Lumber Co., 118 Mo. App. 184. In the second ■place, it was improper for the court to admit as evidence of ownership' the oral testimony of witnesses as to what they understood the deed records and indexes of deed records to show, concerning the question as to who were the owners of the lands in the drainage district. The question of ownership is a question of law, for the court to pass on, and not to be decided by the testimony of witnesses. Brown v. Railway Co., 101 Mo. 484; Land Co. v. Thompson, 157 Mo. 647; Whittlesey v. Kellogg, 28 Mo. 404; Milan v. Pemberton, 12 Mo. 598. The custodian of the record, in this cas-e, the recorder of deeds, is the only person who may testify as to what the records in his office show or do not show, and this rule applies in all cases where the ownership of real estate is involved. Sec. 2819', E. S. 1909. Even records other than the records of the conveyances of real estate are subject to the rule that no person except the custodian thereof may give oral testimony of .its contents. Blodgett v. Schaffer, 94 Mo. 652; Martin v. Brand, 182 Mo. 116. The best evidence' available to the party offering evidence must.be offered. Montgomery v. Dormer, 181 Mo. 5. The deed records of Stoddard County were all in the office of the recorder of that county at the time of the trial, and no offer of any of these records as evidence in this case was made.

      Wammack & Welborn and J. F. Meador for respondents.
    The court might very well require some showing by the petitioners as to the ownership of the land — a sufficient showing to induce the court to see that it is not being imposed upon, but in the absence of any showing whatever on behalf of the objectors (and there is no such showing in this case) the objectors would have no-right to demand anything more than the showing made by the articles themselves and would not be in a position to question the character of evidence by which such showing was made. Birmingham Drainage District v. Eailroad, 178.S. W. 897; Little Eiver Drainage District v. Railroad, 236 Mo. 94.
   FARIS, J.

This is an appeal from a proceeding in the circuit court of Stoddard County for the incorporation of a drainage district under the provisions of the Act of March 24, 1913, [Laws 1913, p. 232, et seq.] . Upon a hearing: on the question of entering a pro forma decree of incorporation and from a judgment decreeing incorporation, appellants here, who are some of the objectors below, have appealed.

The questions which are involved turn upon the objections filed by- appellants and others who were not signers of the proposed articles of incorporation. Except for the alleged errors in the admission of evidence upon the hearing of the case and which are specifically set forth in the opinion, a full understanding of the points of contention may be had from the objections filed by appellants. These objections, caption, merely formal parts and the names of the objectors other than these appellants, omitted, are as follows, so far as they are pertinent:

“Now come B. F. Wilson, C. S. Gilbert, L. A. Pradt, Neal Brown [and eighteen other named persons] and state that they are the owners of the lands and real estate which it is alleged that they own in the articles of association, made and executed by George S. Dean, Robert H. Bailey, Timothy T. Beach and others asking and praying that the lands and other property therein described be organized and incorpo- - rated as a drainage district- to be named Mingo Drainage District, and filed in the office of the clerk of this court in vacation of the court.
“These objectors, B. F. Wilson, C. S. Gilbert, L„ A. Pradt, Neal Brown [and eighteen other'named persons] further state that they did not sign the articles of association herein.
“The said B. F. Wilson, C. S. Gilbert, L. A. Pradt, Neal Brown [and eighteen other named persons] come now into court here for the purpose of objecting, most respectfully to the incorporation of the said proposed Mingo Drainage District under the said articles of association filed in this court, and do object most earnestly and sincerely to the organization and incorporation of said Ming’o Drainage District for the following reasons, to-wit:
“1st. For the reason that the drainage and reclamation of the lands and other property in said proposed district from the effects of water, which is contemplated if said Mingo Drainage District be organized and incorporated, is not practical or feasible, even if tbe same be possible.
“2nd. For tbe reason that tbe effects of tbe water upon tbe lands and other property within tbe said proposed district are not so injurious as to justify imposing tbe burdens and costs and expenses upon tbe owners of tbe lands and property in tbe district for the purpose of draining tbe said lands.
“3rd. For tbe reason that tbe drainage of tbe said lands is impracticable for want or lack of sufficient fall or slope in tbe land to carry off tbe water that accumulates thereon by rainfall and natural flowage.
“4th. For the reason that there is not sufficient outlet or channel or other body of water into which tbe water may be drained off tbe lands in tbe proposed district, nor any way of draining it off without throwing it onto other lands of great value, thereby entailing great damage to such other lands and placing heavy burdens of taxation on tbe lands in tbe said district to pay tbe same.
“5th. For tbe reason that there are many acres, of lands in said proposed district that would not in any way be benefited by tbe drainage of tbe swamp and overflowed lands therein.
“6th. For tbe reason that there are many acres of lands in said proposed district that are not swamp, nor overflowed land, nor subject to overflow by water.
" 7th. For tbe reason that tbe burden of taxation upon tbe lands in tbe proposed district would, necessarily, 'be so great that tbe making of tbe improvements contemplated, and draining tbe lands in tbe district would be out of reason and proportion to tbe benefits that would result therefrom to tbe property in said drainage district.
“8th. For tbe reason that there are now in process of drainage and reclamation about 5,000,000 [sic] acres •of swamp, wet and overflowed lands and lands subject to overflow in the Little River Drainage District immediately north and east of the' proposed Mingo Drainage District, which project, if practicable and •consummated, will reclaim and throw upon the market, no doubt, many thousands of acres of land and open up to use many thousands of acres of land, if the project of drainage is practicable and feasible, which-will render the present drainage and reclamation of the lands in the proposed Mingo Drainage District impracticable, for the reason that there will be no demand nor necessity for the reclamation of said lands at the present time and for several years; and, if said lands in said Little River Drainage District be not reclaimed and made useful for agricultural purposes and other purposes, then that fact will demonstrate the impracticability of the reclamation of the swamp-, wet and overflowed lands in the proposed Mingo Drainag’e District, hence it is best and most judicious to await the result of the efforts at the reclamation of the lands in the Little River Drainage District before proceeding to the organization and incorporation of the proposed Mingo Drainage District, which, if organized and incorporated, will entail large and burdensome expenses and costs on the owners of the property in said district, even if it should be demonstrated later that the project is impracticable.
“9th. For the reason that there is no demand or necessity for the drainage of the lands in the proposed Mingo Drainage District at the present time that justifies the organization and incorporation of the district. ...
“11th. For the reason that the owners of a majority of the acreage of the lands in said proposed Mingo Drainage District have not signed said articles of association.
“12th. For the reason that the owners of a majority of the acreage of the swamp, wet and overflowed lands and lands subject to overflow by water have not signed said articles of association.
‘ ‘ 13th. For the reason that the owners of a majority of the acreage of the swamp, wet and overflowed lands and lands subject to overflow by water in a contiguous body have not signed the said articles of association.
“14th.- For the reason that the lands and other property in said proposed drainage district owned by each person who owns land and property therein are not described as belonging to the respective owners thereof and the name and post-office addresses of each owner given in said articles of association.
‘ * 15th. For the reason that the names of the individual owners of lands and other property in said proposed Mingo Drainage District is not given and the lands and other property owned by each is not described in the said articles of association.
“16th. For the reason that there are swamp, wet and overflowed lands and lands subject to overflow by water in the said proposed Mingo Drainage District which are not described in said articles of association.
“17th. For the reason that much of the lands described in said articles of association filed herein are not swamp, wet or overflowed lands, nor lands subject to overflow.
“18th. For the reason that there are persons who own lands in said proposed drainage district whose names are known by the persons who .signed said articles of association, or by some of such signers, and whose names are not stated in said articles of association. ...
“23rd. For the reason that many of the persons whose names appear as signers to the articles of association did not, in fact, sign said articles of association and did not authorize their respective names to be signed thereto.
“24th. For the reason that many of the persons whose names appear as signers to said articles of association do not own any lands or other property within said Mingo Drainage District.
“25th. For the reason that said articles of association contain no description of any property other than lands, and there is no allegation that there are any other kinds of property in said drainage district other than real estate and lands, and no allegation that the owner or owners of any kind of property in said district than lands, have or has signed said articles of association, and no allegation that there are no .other kinds of property in said-district other than lands.
“26th. For the reason that the lands belonging-to these objectors within said proposed drainage district would not be benefited by the drainage and alleged improvements contemplated by the petitioners as disclosed by said articles of incorporation, but on the contrary, would thereby be greatly injured and damaged.
“These objectors to the organization and incorporation of the said Mingo Drainage District earnestly object to the organization and incorporation of said Drainage District for the above and foregoing reasons, and they respectfully ask the court to find and to adjudge and decree that the lands described in said articles of association be not organized and incorporated as a drainage district, and to render its order, judgment and decree dismissing said articles of association and said drainage proceedings, and to adjudge the costs of this proceeding against the said signers of said articles of association according to law, and that these objectors recover of and from the said signers to said articles of association their costs and expenses in this behalf expended, and that they have execution therefor, and that they be permitted to go hence without day.”

OPINION.

I. Objectors raised nisi twenty-six alleged reasons why the Mingo Drainage District should not be incorporated. Many of these were premature and could not have been considered by the court nisi at this incorporating stage of this proceeding. For many, if not the majority of the twénty-six points mooted, will save themselves till the report of the viewers and engineers comes in, should that stage ever be reached. Such of the points as were timely, but not prematurely raised, are here for review as questions of fact or as alleged errors of the court below, in admitting evidence. Some of these timely mooted points have apparently been waived, since no steps to review them are taken here. ■So, three points only confront us: (a) That the court nisi allowed, over appellant’s objections, the ownership of the lands in the proposed district to be proved by secondary evidence, instead of requiring such proof of ownership to be made by deraignment from the ■Government down to the present owners, by offering in proof the best evidence, to-wit, original muniments of title, or certified copies thereof, upon a proper foundation laid; (b) that there are unlawfully included within the limits of the proposed' district certain lands which are not swamp, but high and hilly; and (c) that certain persons, to-wit, Collins, Shantz and Keaton, had no legal authority to sign the proposed articles of incorporation for certain owners of lands within the proposed district.

We must bear in mind that not one scintilla of evidence was offered, by the appellants, or by any other objector. These objectors merely stood by and contented themselves with objecting to the form of proof offered by the petitioners for the district to show ownership of the lands therein.

Ueneralizing, we but state a well-settled truism when we say that since drainage and reclamation statutes are manifestations of one of tbe very highest phases of the police power, that, to-wit, having an intimate relation to the betterment of health through sanitation and the destruction of breeding-places for germ-bearing- insects, courts in this, as in practically every other jurisdiction, have held that such statutes are to be liberally construed. [State ex rel. v. Bugg, 224 Mo. l. c. 554; State ex rel. v. Bates, 235 Mo. l. c. 293; Osborn v. Maxinkuckee Lake Ice Co., 154 Ind. 101.] Indeed, our. statute in express terms declares its own remedial character, and requires at our hands a liberal construction. [Sec. 62, Laws 1913, p. 267.)

Coming specifically to the provisions of our statute, we note that there are provided time and place for both general and specific objections and exceptions. By section 4 of the Act of March 24, 1913, Laws 1913, p. 235, any person, barring those who are signers of the proposed articles of incorporation, may appear and file objections “why such drainage district should not be organized and incorporated.” Such objections, it is obvious, inure to the benefit of all non-signing owners of property liable to taxation in the proposed district. After the district is, in a way of speaking, “conditionally organized and incorporated” (Carder v. Fabius River Drainage District, 262 Mo. l. c. 554), any individual owning such property therein (whether he signed the articles or not), or even the district itself, may file individual exceptions, covering .apparently any and! every possible phase of accruing damage to the property or interests of the exceptor. [Sec. 16, Laws 1913, p. 241.]

The general objection first above mentioned is that which is said to be in controversy here. Touching it our statute provides that “any owner of real estate or other property in said proposed district, who may not have signed said articles of association, objecting- to the organization and incorporation of said drainage district, shall, on or before the first day of the term of conrt at ■which the cause is to be heard, file his objection'or objections why such drainage district should not be organized and incorporated. Such objection or objections shall be limited to a denial of the statements in the articles of association, -and shall be heard by the court in a summary manner, without unnecessary delay.” [Laws 1913, p. 235, sec. 4.]

It will be noted that objections may be filed on the day set for hearing in the circuit court, and that when so filed they are to be heard “in a summary manner,” and “without unnecessary delay.” It is not so cleár that we are aided, for that in the determination of the troubling point, the Legislature may have had in mind a trial according to the rule governing summary proceedings, that is, a-trial which is not regulated, or bound by the rules of the common law or by the statutes of pleading and procedure which govern practice and procedure in ordinary civil cases. For such proceedings yet follow the common-law rules of evidence, absent a statute otherwise providing. [Comm. v. Borden, 61 Pa. St. 272.] However, it is fairly deducible that the Legislature held in mind the utter impossibility in practice in the ordinary case of requiring ownership of lands in a proposed drainage district to be shown by a formal deraignment from the Government through original muniments of title, or by certified copies upon a proper foundation laid. In the case at bar more than thirty thousand acres of land are included in the proposed district. There are more than three hundred separate tracts described. These said tracts have as owners, or incumbrancers whose titles or claims are evidently evidenced by paper conveyances, many more than three hundred persons or corporations. If there were but one conveyance to each tract much expense and labor would be involved in making strict proof to meet the contentions of appellants here. If there were an average of ten conveyances to each tract, the matter of proof of title in the way urged on us would instantly become impracticable to a point approaching the impossible. And if it were ever desired to be made a matter of review here by appeal, such appeal would likewise be impossible on account of the labor and expense of printing a record of the three thousand or more conveyances offered in evidence below. Being permitted 'by law to be no more ignorant than the ordinary citizen, of matters of contemporary progress, public moment and history, we know (in fact such acreage is writ at large in the instant record) that the Little River Drainage District contains much more than half a million acres of land. The strict rule here contended for would have forbidden for all time the organization of that district. Yet it seems that in the organization of that district the court nisi permitted, and this court sanctioned, the use of evidence which did not prove ownership (as deraignment by muniments of .title from the source would have done, as inevitably as the demonstration of a problem in Euclid), but merely “evidence tending to prove the ownership as alleged in the articles of association. ’ ’ [Little River Drainage District v. Railroad, 236 Mo. l. c. 112.]

It is manifest that the circuit court could not pause in the organization of a drainage district under a statute worded as ours is, to try out and determine between all possible contenders each and every title to each of the three hundred parcels of land in the district at bar. Such a view is so restricted and narrow as to trench upon the ridiculous. So, while conceding that where the question of title is directly in issue the best evidence thereof is required as appellants contend, that is not the case before us. Here the matter of title is only incidental, and all that is required is a primafacie showing of ownership. The ownership shown, it would seem, may be that only which arises from a recorded deed, or a deed not recorded if there be in fact ownership, or no deed at all where there is sufficient possession. The pseudo owner may not have an indefeasible title; his title may be so flimsy as to fall at the first attack by the true owner, but if it be of record and be of the stature connoted by the phrase prima-facie, it is sufficient to constitute the claimant an owner so that he may petition for the incorporation of a drainage district. Being only incidentally involved therefore, title, or ownership, may be shown prima-facie by secondary evidence. [Railroad v. Gilbert, 3 C. C. A. 264; Joy v. State, 41 Tex. Crim. App. 46; Sleep v. Heymann, 57 Wis. 495; Babcock v. Beaver Creek Township, 65 Mich. 479; Grevenberg v. Borel, 25 La. Ann. 530.] The reason for the distinction is not far to see. For whenever an action is brought wherein the question of title to land is the sole issue to be. determined the case and wherein the judgment will become final and conclusive proof of such title, the best evidence of which the conditions permit should be adduced. But where as here it is merely collateral, and the producing of the best evidence would involve so great a labor and so huge a volume of record evidence as to render' the making of proof impossible from the view point of .practicability, we are permitted to hold in consonance with the authorities that the rule as to the best evidence does not apply. Besides, the fact that any other view would render this statute so cumbers.ome and onerous in the making of proof of ownership, as to forbid the organization of any but small districts, when the converse must have been intended, inclines us to the opinion that the Legislature intended to relax the harsh rules of evidence in the making of this proof. That such a viéw was in the legislative mind is to be gathered from the statutory requirement that such objections as those now at bar shall be heard in a “summary manner, without unnecessary delay. ’ ’

We hold that the showing made by oral testimony' ■of persons who are shown to be competent abstractors, familiar with land titles, and who had examined the abstracts of title to the lands in the proposed district, ■and the records of the recorder’s office touching same, as also the tax books, was sufficient, as prima-facie W°°f of such ownership for the purposes of incorporating this drainage district.

We could have reached this conclusion by another road: For while both the appellants and the respondents treat this point of ownership as well raised by the objections filed, we do not think that it is so raised. But because both sides so agree, and because it has, it seems, been raised before and never ruled (Little River Drainage District v. Railroad, supra; Birmingham Dr. Dist. v. Railroad, 266 Mo. 60), we have thought best to notice it. Yet one will read in vain through the exceptions to find specifically this objection mooted. It is objected, to-wit:

‘ ‘ 13th. For the reason that the owners of a majority of the acreage of the swamp, wet and overflowed lands and lands subject to overflow by water in a contiguous body have not signed the said articles of association, ’ ’ and,
“24th. For the reason that many of the persons whose names appear as signers to said articles of association do not own any lands or other property within said Mingo Drainage District.”

But nowhere is it said specifically who of the signers do not own lands in the proposed district, or that the ostensible owners of a majority of the acreage who signed the petition do not in fact own the lands they therein claim to own. Rather do the two allegations seem to hint, while most adroitly avoiding, a direet charge of a signing by others than the owners of the lands. Taking the two charges together they may seem to make this direct charge; considering them separately they do not so charge. The thirteenth allegation may mean that, granting good faith and truth in the averment of ownership, there are yet, upon a bare inspection and mathematical addition, not enough owners of acreage signing to amount to a majority. The twenty-fourth allegation may mean that there are enough signers to confer jurisdiction, but yet by accident or inadvertence, names of unnecessary persons have gotten upon the lists.

Conceding that it might be possible for a fraud to be perpetrated upon the court to which a petition for the incorporation of a drainage district is presented, and that in such case there should be at hand a plain way to circumvent such fraud, yet it is apparent that such protection both to the court and t.o non-signing and opposing owners of property liable to taxation, is plainly afforded without raising for such chimerical situation an insuperable barrier to the organization of these districts at all. For if A, who is not an owner of any land of the mentioned sort in the proposed district yet signs the petition for some fraudulent and ulterior motive, nothing is easier than to so charge specifically in the objections filed, by denying that A is such owner, and upon the hearing 'to break •down the prima-facie case made by proof of A’s lack of competency as a signer. Or, even to deny generally that divers persons who signed the petition were competent signers or owners of the lands they claim to own, and therefore that their signing was designed to work a fraud upon the court and impose an illegal tax and hardship upon the property owners. But as forecast, in such case some proof of the allegation ought to be made to destroy the prima-facie case made by proof from persons who had examined the records, abstracts and tax hooks. We mention this lest it be urged that no protection against fraud is afforded by the ruling: we have found it necessary to make in compliance with the statutory demand of a liberal construction of this law at our hands.

II. It is contended that there are some high, hilly lands embraced in the proposed district; and that such fact renders the incorporation illegal. We do not think it necessarily follows that because certain high lands which neither floods nor water cover, are included, such fact conclusively shows a lack of benefit to such lands making: the inclusion of them ipso facto error. This would seem to be true here for at least three reasons: (a) Appellants here do not own any of these hill lands so here included; (b) it is not shown that the petitioners who signed would cease to be a majority, if the signing owners of the hill lands were excluded, and (c) it may well be that the drainage of low, wet and swamp land lying about, around or near high hill land will so far benefit the latter in matters of sanitation and ease of egress and ingress as to render it entirely equitable that the hill land should bear a modicum of the cost of draining the low land. Besides, it was said in oral argument and not denied, that such inclusion of hill land does not change the status of the case as to the forum, or jurisdiction, or as to the requisite number of signing owners, and that such inclusion was largely for the purpose of convenience in description. Moreover, it appears by the record that the petitioners sought to amend the proposed articles by striking out these hill lands, but their motion to this, end was overruled. If this was error, it was not one for which petitioners should suff er. [In re Big Lake Drainage District v. Rolwing, 265 Mo. 450.]

The owners of this hill land, if 'so it be that they are not benefited, have provided for them in the statute under discussion a place and time to moot this question. [Sec. 16, Laws 1913, p. 241.] That such a question might be raised successfully at this juncture, we may concede without deciding, contenting us with holding that it has not been so raised upon the facts here. In such latter ease, however, the inclusion of the hill land should have the effect to oust jurisdiction by destroying the competency of a jurisdictional number of petitioners; absent, perhaps, even in such case, proof of contingent benefit from betterment of health or access.

III. The proof shows that one Shantz, who was president of a corporation owning certain of the lands sought to be included, signed the articles of incorporation without being in that behalf specifically authorized by the board of directors or by a vote of the stockholders. Likewise the proof showed that one Collins, having a power of attorney to act generally for the Connecticut Mutual Life Insurance Company touching certain lands which said company owned in the proposed district, signed for said company without specific authorization. It is urged that these persons were not upon these facts competent to sign for their respective principals.

We held in the case of Sibbett v. Steele, 240 Mo. l. c. 94, in substance that a petition for the incorporation of a drainage district was in effect the first pleading in the case; that such pleading might be signed by the attorneys who appeared in court and therein represented the petitioners, and that so assuming to represent them, such attorney would be held to possess the power of binding the petitioners by the judgment rendered, no objection from the latter appearing showing lack of power so to bind them. These petitioners are not here objecting for themselves. They do not question the authority of their agents. Appellants are seeking to question it for them. We think the holding in the Sibbett case disposes of this contention, either directly or by the very strongest analogy. Also that case disposes of the contention that Keaton had no authority to sign for Sloan and Mrs. Clayton; the facts being that Keaton had contracted to buy the land for which he signed the names of Sloan and Mrs. Clayton, and the conveyance to him therefor was actually executed and lying in escrow. ‘Before the case came on for hearing Keaton had taken down the deed and had it recorded. Neither Keaton, the present owner, nor the Shantz Company, nor the Insurance Company was objecting; the others may not. We disallow these several contentions.

No point is made touching' the style of this case. Consequently, we style it here cumbersomely, as it came up to us. We think, however that prior to a final judgment decreeing incorporation, the better style would be: “In re Petition for Incorporation of Mingo Drainage District; George S. Dean et al., Petitioners, Respondents, v. B. F. Wilson et al., Appellants.”' [Little River Drainage District v. Railroad, 236 Mo. 94.] After the decree of incorporation has been made final, the district may of course sue and be sued in its. own corporate name. [Carder v. Fabius River Drainage District No. 3, 262 Mo. 542.] We but mention this, in passing, lest by silence, we should seem to approve-the style herein adopted, and for the sake of uniformity, of which virtue there has been so little, as a glance-at the Missouri drainage cases indicates.

■ It follows that the judgment incorporating this: district should be affirmed. Let this be done.

All concur, except Walker, J., absent.


author: BLAIR, J.

text:
    J. C. SIMPSON, Appellant, v. O. L. VAN LANINGHAM.
    In Banc,
    March 1, 1916.
    1. NEGOTIABLE NOTE: Notice- of Infirmities. Notes made, payable to the maker and indorsed in blank by him become payable to bearer and negotiable by delivery; and a transferee-before maturity with actual knowledge of a. concurrent de-. pendent agreement, and a transferee after maturity without actual knowledge, take the notes with notice of the agreement and that it makes them non-payable.
    2.--: Concurrent Dependent Agreement. A negotiable. promissory note and a concurrent collateral agreement, con-, nected by direct reference or necessary implication, the stipu-. lations of which are mutual and dependent, are to be construed, together as one entire contract; ■ and a transferee of the note, after maturity, without actual knowledge of the agreement, can-, not recover, if the agreement, when so construed, bars a re-recovery.
    3. -: —;-: Option to Surrender Stock for Notes. The. maker of negotiable notes received a concurrent written agree-, ment, signed by a corporation and its president, reciting that., the maker had purchased one hundred shares of the capital stock of the company, for which he had given his two notes, in settlement, due in six months, and guaranteeing that the maker, at their maturity might, at his option, surrender the, stock, whereupon the notes would be cancelled and returned to him. The certificates of stock, indorsed -in blank, were at-, tached to the notes, and the notes were transferred to a bank,, whose cashier had full actual knowledge of the agreement. Shortly afterwards the bank went into the hands of a receiver,, who, after the maturity of the notes, sold them to plaintiff.. Held, that the notes and agreement did not constitute independent contracts, but they are dependent, and the agreement con-, stitutes a defense to an action on the' notes; and since the payee of the notes, when the agreement was delivered, was, the holder, and the holder signed the agreement, the rule is. not changed by the fact that another also signed it.
    4. GUARANTEE. The fact that the makers of an agreement, “guarantee” certain things does not of itself constitute the agreement a guaranty. The word may be used simply to give, emphasis and not to change the plain character of the agree-, ment.
    5. NEGOTIABLE NOTES: Conditioned on Return of Stock: Failure to Return as Part of Defense. Where negotiable. .notes, given for the purchase of certificates of stock of a cor-, poration, indorsed in blank, attached to the notes and delivered with them to the payee, were accompanied by a con-, current dependent agreement that upon the maturity of the. notes the certificates could be surrendered and the notes can-, celled, and that agreement is set up as a defense to an action on the notes, the instructions may authorize a finding for de-. fendant without requiring a finding that he returned the, stock or relinquished his right to it, since the certificates were, already in possession of the holder of the notes, and it was. impossible for defendant to tender the physical return of the stock.
    5. -; -: Evidence of Demand for Return of Notes. And, under such circumstances, evidence that the maker demanded from the signers of the concurrent dependent agreement (the corporation and its president) the return of the notes, in .accordance with the agreement, and being told they were in possession of a bank as transferee had his attorney to .demand them from the bank, was competent to show an effort .on defendant’s part to comply with the agreement, as far as he .could.

      1. -: -: Evidence of Election. And evidence that, when defendant was approached by the attorney of the corporation on the theory that he was a stockholder, he announced that .he had elected to surrender the stock and cancel the notes in accordance with the agreement, could not have prejudiced the rights of a holder of the notes with notice of the agreement.
    8. EVIDENCE; Hearsay. A general objection that all the testimony on a particular subject contained in two depositions was hearsay should not be allowed if part of it is clearly not hearsay.
    Appeal from Jackson Circuit Court. — Hon. W. A. Powell, Judge.
    Aeeirmeu.

      Robinson & Goodrich for appellant.
    (1) The existence of the guaranty, even if the cashier had knowledge thereof at the time the bank purchased the note, constituted no defense to this action. Jennings v. Todd, 118 Mo. 305; Miller v. Alts-way, 81 Mich. 196; Adams v. Smith, 35 Me. 324; Dow v. Tuttle, 4 Mass. 414; Davis v. McCurdy, 17 N. Y. 230; R. S. 1909, secs. 10022, 10024, 10025. (2) The' court .committed- error in admitting in evidence defendant’s testimony as to conversations he had had with, and statements made to, other persons, not parties to this suit, in regard to the guaranty given him hy the Refrigerating Company and J. E. Brady, and in regard to the bank cashier’s knowledge of said guaranty. (a) They were simply self-serving declarations of the defendant, not made in the presence of his adversary. Milliken v. Green, 5 Mo. 489'; Gordon v. Klapp, 38 Ala. 357; Nicholson v. Tarply, 70' Cal. 608; Williams v. English, 64 Ga. 546; Adams Express Co. v. Boskowitz, 107 111. 660; Handley v. Cal., 30 Me. 9; Neisbaum v. Thompson, 11 Md. 557; Kehrig v. Peters, 41 Mich. 475; Cain v. Cain, 140 Pa. St. 144. A party’s own statements, not made in the presence of his adversary, are not admissible in his own favor. McLean v. Rutherford, 8 Mo. 109; Teller v. Patten, 61 U. S. 125; Alexander v. Handley, 96 Ala. 220; Rogers v. Schulenberg, 111 Cal. 281; Alston v. Grantham, 26 Ga. 374; Cotton v. Holliday, 59 111. 176; Corbel v. Beard, 92 Iowa, 360; Talbott v. Talbott, 25 Ky. 3; Boston v. Worcester, 67 Mass. 83; Griffin v. Bristle, 39 Minn. 456; Howard v. Hunt, 57 N. H. 467; Moody v. Gardner, 42 Tex. 411; McKesson v. Sherman, 51 Wis. 303. (b) Said conversation were hearsay evidence, and therefore not admissible. Chouteau v. Searcy, 8 Mo. 733; Atkisson v. Castle Garden, 28 Mo. 124; Coble v. McDaniel, 33 Mo. 363; O’Neil v. Crain, 67 Mo. 250; Fougue v. Burgess, 71 Mo. 389; St. Louis v. Arnett, 94 Mo. 275; State v. Sibley, 131 Mo. 530; Gordon v. Burris, 141 Mo. 611; Allen v. Transit Co., 183 Mo. 437; iBevis v. Railroad, 26 Mo. App. 19; Love v. Love, 98 Mo. App. 509; 16 Cyc. 1200; 11 Ami & Eng. Ency. Law, p. 520. (c) Moreover, said conversations- and •statements were wholly irrelevant to any issue in the ease, and for that réason inadmissible. Irrelevant testimony is never admissible. 1 Greenleaf on Ev., secs. 50, 52 and 448; Eddy v. Baldwin, 32 Mo. 369; Ferguson v. 'Thatcher, 79 Mo. 511; Frederick v. Allgaier, 88 Mo. 598; State v. Blunt, 91 Mo. 503; Mathias v. O’Neill, 94 Mo. 520; Carlin v. Bank, 86 Mo. App. 592; Bank v. Bank, 64 Mo. App. 253; Thompson v. Bowie, 4 Wall. 463; Whitelaw v. Whitelaw, 96 Ya. 712. (3) Defendant’s instruction authorized the jury to return a verdict for defendant without finding a performance on bis part of the conditions necessary to entitle him to the benefit of the guaranty given him by J. E, Brady and the Refrigerating Company.

      William Thomson and D. G. Payne for respondent.
    Plaintiff cannot recover in this action, (a) Plaintiff is not a holder in due course. R. S. 1909', secs. 10022, 10024, 10025, 10026. (b) A trustee cannot delegate his power. Cassady v. Wallace, 102 Mo. 575; Garesche v. Inv. Co., 146 Mo. 436; Bailes v. Perry, 51 Mo. 449; Graham v. King, 50 Mo. 22. (c) One buying commercial paper after maturity takes it subject to equities, (d) Equities between maker and payee brought to aetual knowledge of indorsee of negotiable note before his purchase of same before maturity, defeats recovery. Johnson v. Machinery Co., 144 Mo. App. 436; Bank v. Brisch, 154, Mo. App. 631; Bank v. Salmon, 117 Mo. App. 506; Bank v. Reeper, 121 Mo. App. 688; Bank v. Ornsdorff, 126 Mo. App. 654 ; 7 Cyc. 947-949'--956. (e) When a collateral and contemporaneous agreement, forming a whole or a part of the consideration on the part of the payee of a negotiable instrument, has been breached by the payee and actual knowledge of such breach has been given to an indorsee who takes before maturity, such knowledge will defeat recovery in the hands of such indorsee. Bank v. Ornsdorff, 126 Mo. App. 654; Hunter v. Johnson, 119 Mo. App. 487; Jennings v. Todd, 118 Mo. 296; Studebaker Mfg. Co. v. Dickson, 70 Mo. 272; Davis v. McCready, 17 N. T. 230; R. S. 1909',-secs. 10022-10024,10025., 10026,10028, (f) Where one of the parties to a contract, either before the time for performance or in the course of performance, makes performance or further performance by him impossible, the other party is discharged and may sue at once for the breach. Wolf v. Marsh, 54 Cal. 228; Miller v. Ward, 2' Conn. 494; Dare v. Spencer, 5 Blackf. 491; Crabtree v. Messersmith, 19 Iowa, 179; Jones v. Walker, 13 B. Mon. 163, 56 Am. Dec. 557; Bassett v. Bassett, '55 Me. 127; Tel. Co. v. Semmes, 73 Md. 9; Grice v. Noble, 59 Mich. 515; Bolles v. Sachs, 37 Minn. 315; Hammer v. Breidenbach, 31 Mo. 29; Crnmp v. Mead, 3 Mo. 233; Clendennen v. Paulsel, 3' Mo. 230; Gibson v. Whip Pnb. Co., 28 Mo. App. 450; True v. Bryant, 32 N. H. 241; Wollner v. Hill, 93 N. Y. 576; Nav. Co. v. Wilcox, 52 N. C. 481; Camp v. Barker, 21 Yt. 469; Hinckley v. Steel Co., 121 H. S. 264. (g) Courts incline strongly against the construction of promises as independent, and if possible they will be held to be concurrent or dependent so that a breach by one party will discharge the other. Larimore v. Tyler, 88 Mo. 661; Turner v. Mellier, 59 Mo.. 526; Caldwell v. Dickson, 26 Mo. 60; Denny v. Kile, 16 Mo. 450; Randolph v. Prick, 57 Mo. App. 400; Bill-ups v. Daggs, 38 Mo. App. 367; Kirkland v. Oates,, 25 Ala. 465; Haney v. Caldwell, 43 Ark. 184; Peasley v. Hart, 65 Cal. 522; Smith v. Lewis, 24 Conn. 624, 63 Am. Dec. 180; Houston v. Spruance, 4 Harr. 117 (Del.); Clark v. Weis, 87 111. 438, 29 Am. Rep. 60; Harshman v. Heavilon, 95 Ind. 147; White v. Day, 56 Iowa, 248; Water Co. v. Winfield, 51 Kan. 104; Poster v. Watson, 16 B. Mon. 377; Golding v. Petit, 20 La. Ann. ,505; Williams v. Hagar, 50 Me. 9; Coates v. Sangston,-5 Md. 121; Gates v. Ryan, 115 Mass. 596; Fultz v. House, 6 Sm. & M. (Miss.) 404; Railroad v. Cochran, 42 Neb. 531; Elliott v. Heath, 14 N. H. 131; Shinn v. Roberts, 20 N. J. L. 435, 43 Am. Dec. 636; Duffield v. Johnston, 96 N. Y. 369'; Ducker v. Cochrane, 92 N. C. 597; Mehurin v. Stone, 37 Ohio St. 49; Becker’s Estate, 166 Pa. St. 313; Hood v. Raines, 19 Tex. 400; Faulkner v. Hebard, 26 Yt. 452; Lowber v. Bangs, 2 Wall. 728,17 L. Ed. 442. (h) No one claiming by virtue of the title which was obtained in said notes by the National Bank of Commerce can recover. Jacobs v. Mitchell, 46 Ohio St. 601; Lancaster v. Callins, 7 Fed. 3'38; Rogers v. Smith, 47 N. Y. 324.
   BLAIR, J.

From a judgment in the J ackson Circuit Court in a suit on two notes for $5000!, plaintiff appeals.

Plaintiff sues merely as an assignee for collection purposes. The notes sued on were negotiable in form, dated September 17,1907, and payable at the National Bank of Commerce of Kansas City, six months after date. Each was signed by defendant and was payable to himself or order.

There was evidence that these notes-were executed in -consideration of the purchase or proposed purchase by defendant of one hundred shares of the stock of the Merchants’ Refrigerator Company, of which J. E. Brady was president. The stock of this last-named -company had been increased, and Brady desired to ■dispose of some of this increase to defendant. There was evidence defendant was a reluctant buyer, but was persuaded by Brady and the cashier of the National Bank of Commerce to yield, and the result was defendant executed the notes in suit, payable to himself, indorsed them in blank and delivered them to Brady for his company, attaching to each note as collateral, fifty shares of the stock of the company contemporaneously issued to him, having indorsed the certificate of stock in blank. As a part of the same transaction the Refrigerator Company and Brady executed and, simultaneously with the delivery of the notes, delivered to defendant a contract in writing.as follows:

The Great Western Life Insurance Co.
Office of President. Kansas City, Mo. 9-16-1907
Mr. O. L. Van Laningham,
City.
Dear Sir:
You have -this day purchased of the Merchants’ Refrigerator Company 100 shares of the capital stock represented by certificates Nos. 134 and 135 for 50 shares each for which you have given two notes of $5000 each in settlement due in six months.
This statement is for the purpose of guaranteeing to you that at the maturity of said notes you may, at your option, surrender the stock and if you do surrender said stock, we jointly and severally agree to cancel and return to you your two notes of $5000 each upon the delivery to us of said stock.
Merchants Refrigerator Co.
By J. E. Brady, Pres.
J. E. Brady.

The answer to each count set up this agreement and averred it was part of the consideration of the notes sued on.

A few days after the notes were executed and delivered and the contract delivered to defendant, Brady and the Eefrigerator Company transferred the notes by delivery only and for value to the National Bank of Commerce. There is evidence the bank had full notice of the contract or agreement delivered to defendant and, in fact, that the bank’s cashier assisted in formulating the agreement set out and participated in the negotiations out of which it and the notes grew.

The bank subsequently went into the hands of .a receiver, who sold the notes in suit, after maturity, with a multitude of others, to the Terrace City Eealty Company and Dr. Woods, who jointly authorized plaintiff to collect them by this suit.

Plaintiff contends the agreement constitutes no defense, without regard to the question of notice to the bank, and complains of certain testimony admitted and instructions given and of rulings on objections to argument of defendant’s counsel. The evidence, instructions and argument complained of need not now be set out, but will be adverted to in the course of the opinion.

I. The notes being payable to the maker and indorsed in blank by him thereupon became payable to bearer and negotiable by delivery and were so negotiated by defendant anq then negotiated to the bank by his transferee. It appears from the evidence that the bank became a holder for value before maturity.

Plaintiff contends the agreement accompanying the note was collateral and independent and constitutes no defense to this action even though it be conceded that the bank took with notice and that plaintiff, a transferee after maturity, is affected with all equities attaching to the note in the bank’s hands.

Practically this identical question was decided in American Gras & V. M. Co. v. Wood, 90 Me. 516. In that case the action was upon a note. In defense there was offered a written agreement to the effect that if the maker did not wish to pay the note at its maturity, he should “receive it back on the surrender by him” to the payee “of one hundred shares of stock” which constituted the consideration of the note.

The court in that case discusses at some length the authorities holding that independent collateral agreements constitute no defense to promissory notes but afford separate actions for their breach, hut holds that the note and agreement there considered are “connected by direct reference or necessary implication” and are to “be construed together as an entire contract, the stipulations of which are mutual and dependent, rather than independent and collateral.” The basis of this rule was stated to be that “two contemporaneous writings between the same parties, upon the same subject-matter, may be read and construed as one paper; and this rule applies notwithstanding one of the writing's is a promissory note, when the action is between the parties to it or their representatives.” It is indisputable that the same rule applies to a transferee with notice or after maturity. [Hill v. Huntress, 43 N. H. 480.]

The agreement in the case at the bar is in writing, and the cases dealing with the admissibility of parol agreements are not in point. Neither, for obvious reasons, are the cases applicable in which attempts were made to defend on the ground that the consideration of the note sued on was an executory contract which had been breached but of which breach the transferee had no notice before he brought the note. The same thing is true of cases in which the defense was that the note was for property accompanied by a warranty, and the transferee of the note had notice of the warranty, but not of its breach. In such cases the note and executory contract or the note and warranty are consistently construed to be independent agreements and the maker is remitted to his action upon his contract or warranty'. To this class belong the cases cited by plaintiff in this case. In Jennings v. Todd, 118 Mo. l. c. 301, it is expressly stated that at the time Bush purchased Jennings’s note “neither the fraud nor breach of contract had developed. ’ ’ In that case the note was payable at a fixed time. The fulfillment of the contract to furnish the maker certain books for a stated price depended upon the maker himself and was to be fulfilled, “from time to time in such quantities” as the maker desired. The note was to become void upon the payee’s violation of its. contract to furnish the maker the books described. When what is said in the opinion, is confined, as it should be, to the facts in the case, it accords with the general current of authority upon the subject and in no way is in conflict with the conclusion reached in American Gas & V. M. Co. v. Wood, supra.

Other cases cited are Adams v. Smith, 35 Me. 324; Miller v. Ottaway, 81 Mich. 196; Dow v. Tuttle, 4 Mass. 414; Davis v. McCready, 17 N. Y. 230.

In Miller v. Ottaway, the note was for the purchase price of two mares, the seller warranting that they were in foal. The note was negotiated before maturity, and the indorsee had knowledge of the warranty, but none of any breach of it. The court states the rule to be that it is not a “defense against a bonafide holder for value that he was informed that the note was made in consideration of an executory contract, unless lie was also informed of its breach,” though the defense might be interposed if he knew of the breach. The court cites 1 Parsons on Bills & Notes, 261, wherein the other cases cited by plaintiff on this point are cited and relied- upon, with others.

It is clear the case at bar does not fall within this principle. The condition upon which the 'agreement in this case provides that the note is to be returned is quite different in character from that contemplated by the rule announced in Miller v. Ottaway. In that case the stipulations were clearly independent and independently actionable. The intent of the parties is the principal thing, and the question is usually to be resolved upon the inquiry, as has been said, whether that intent was that performance should be mutual, dependent and simultaneous. [Turner v. Mellier, 59 Mo. l. c. 535, 536.] It is also true that in case of doubt, covenants are ordinarily held to be dependent. These principles distinguish the cases cited by plaintiff and confirm the soundness of the conclusion in American Gas & V. M. Co. v. Wood, which we think correct, and which, applied here, negatives plaintiff’s contention that the agreement in evidence did not affect the right to sue on the notes. If the bank took with knowledge of the agreement, it took subject to it and, further, can even be said to have taken with knowledge of a breach, since it took with the notes the stock attached to them and dealt with in the agreement. Plaintiff’s principals bought from the bank after maturity and stand in the 'bank’s shoes, so far as the agreement is concerned.

It is suggested the agreement is not between the parties to the note and that it cannot, therefore, be construed with the note. The evidence makes it clear enough that the note was transferred by delivery to the maker of the agreement. It was payable to bearer, being indorsed in blank by the payee who executed it to himself. It was this note, so transferred, with which the agreement had to do. The payee, when the agreement was delivered, was the holder, and the holder signed the agreement. That another also signed does not change the rule.

It is also contended that the agreement was a mere guaranty and intended merely to afford an action in case of non-compliance with its terms. This argument is based upon the use of the word “guarantee” in the agreement. The term “guarantee” was doubtless used with the intent to give emphasis and not to change the plain character of the agreement.

II. It is urged that the instructions given for-defendant authorized a finding for him without requiring a finding that he complied with the conditions of the agreement by returning the stock or relinqnishing his rights to it. Plaintiff offered in evidence the notes and, attached thereto, the certificates of stock, indorsed in blank. Prom their date, the holders of the notes had the stock, so indorsed, in their possession. Defendant was wholly disabled to tender physically the stock in return for the notes, and that because plaintiff’s assignor had possession of the stock when the notes matured. Having proved that the bank, in whose shoes he stands, had the stock in its possession and that it was indorsed in such manner that the bank could avail itself of it at will, and that he now has the same stock in the same condition, it does not lie in his mouth to complain because the jury was not required to find that defendant tendered to the bank the stock which the bank already had, under its full control, so far as this question is concerned.

III. Defendant, in his deposition, on cross-examination, testified that after the bank went into the hands of a receiver he was called into a meeting of the officers and directors of the National Bank of Commerce and reorganization committee. The receiver, also, was present. Dr. Woods, one of the plaintiff’s present principals (one of the present owners of the note) and Mr. Rule, cashier of the bank, were there. Defendant said he was questioned as to the notes, and said he “went into the case fully and stated Mr. Rule’s connection with the matter and also stated he did not care to purchase the stock, but that he exercised his right to cancel” in accordance with the contract, and demanded his notes. He said he offered to produce the contract, but the chairman said it was not necessary, stating that if the notes were in the hands of innocent parties they would have to be paid. Defendant testified he replied they were not in the hands of innocent parties, but of the Bank of Commerce, which had notice of the whole transaction. This testimony appears, piecemeal, in two depositions.

The objections made in this connection .were that the above was hearsay. One fault with the objection now relied upon is that it included in the scope of the matter objected to defendant’s offer to produce the contract and other things clearly not hearsay. It was too broad. Further, it was competent to show that Dr. "Woods had notice of the bank’s knowledge of the agreement before he purchased the notes in suit, particularly since these notes were purchased by him and another, in connection with other paper of the face value of $432,000 for the sum of $30',000.

IV. Objection is also made to testimony of defendant that he demanded from Brady and the Merchants’ Refrigerator Company the return of his notes, in accordance with his agreement; that he was told the bank had the notes, and he then caused his attorney to demand the notes from the bank. In this he is supported by Brady and his attorney. This testimony was competent to show an effort to comply with the agreement, so far as defendant could. The principle relied upon by plaintiff in connection with this complaint concerning the instructions would have required of defendant an effort to surrender the stock and a demand that the notes he canceled under the agreement had the stock not been in the possession of the holder of the note. The testimony could not have injured plaintiff in any way. The same is true of defendant’s testimony that when approached by the attorney of the Refrigerator Company on the theory that he was a stockholder thereof he announced that he had elected to surrender the stock and cancel the notes. This evidence could not have prejudiced plaintiff, since it is conceded the written agreement authorized defendant to make such election as against the Refrigerator Company,-and plaintiff stands simply upon the ground that the bank had no notice of the contract and that, even if it had, the notes in its hands would not have been affected by it. Practically all of the testimony objected to was elicited by plaintiff’s counsel on cross-examination but read to the jury by defendant’s counsel.

Y. Several objections were made during the argument of defendant’s counsel. In all instances except one, the court ruled with plaintiff and admonished counsel'for defendant. No requests for stronger rebukes were made. At tine point counsel for defendant said: ‘ ‘ The Terrace Company was formed for the very purpose of manipulating this stuff, nearly all the assets of that bank.” Counsel for plaintiff objected on the ground that “the instruction of the court is, that does not constitute a defense.” Counsel for defendant rejoined that the instruction did not state it was “a circumstance the jury cannot consider.” The court merely remarked “Go on.” The objection now made, that the statement would prejudice the jury, was not made in the trial court. Eurther, there was evidence tending to show the statement ha'd truth in it. At the most there is nothing indicating that the trial court, who had heard all the argument in the case, abused its discretion in ruling as it did. The judgment is affirmed.

All concur, except Woodson, C. J., and Graves and Bond, JJ., who dissent.