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    In re JOSEPHINE SWITZER, Guardian of HENRY W. SWITZER; HENRY W. SWITZER, Appellant, v. JOSEPHINE SWITZER, Guardian, FRANK ASKEW and JOACHIM A. BACHMAN.
    Division Two,
    December 22, 1906.
    1. ADMINISTRATION: Final Settlement: Appeal: Guardian’s Sureties. Sureties on the bond of a guardian of the person and estate of a minor have such an interest in the administration of the estate as entitle them to an appeal from a judgment of the probate court approving final settlement of the administrator of the estate of the minor’s intestate.
    2. -: Appeal: Generally. Persons having a substantial interest in the subject-matter of the controversy should be allowed an appeal, whether parties or not, if by a fair and reasonable interpretation of the statute they can be brought within its provisions. (Distinguishing Zinc Co. v. Hesselmeyer, 50 Mo. 180.)

      3. -: Final Settlement: Payment’ to Guardian: Receipt for Moneys Not Paid. Where the same person is administratrix of her husband’s estate and guardian of the person and estate of her minor child, she cannot discharge herself and her sureties as administratrix and impose a liability upon herself and sureties as guardian, by giving a receipt by herself as guardian to herself as administratrix for moneys received by her as administratrix but not in fact paid over to herself as guardian.
    4. -: -: Allowance for Maintenance: Increase by Circuit Court. An increase by the circuit court on appeal of a monthly allowance by the probate court for the support and maintenance of the minor from $30 to $35, will not be disturbed where there is evidence to support it.
    5. -: Commissions to Guardian. The amount of commissions to be allowed the guardian is within the discretion of the court, and on appeal that discretion will not be interfered with where the trial court had all the facts before it.
    6. -: -: Restatement of Account. The account for final settlement by an administrator will not be restated on the minor’s appeal even though the commissions allowed the guardian in the circuit court were less than half the amount allowed by the probate court.
    7. -: Restatement of Account at Respondent’s Request: Appeal. Where the respondent sureties on the guardian’s bond did not appeal, this court will not on the minor’s appeal restate the account and give the guardian credit for items paid to the minor and credited to the guardian in the probate court, which by oversight and mistake were entirely overlooked by the circuit court. Nor will the judgment be reversed because of such mistake and the cause remanded, if indeed it was a mistake.
    8. -: Mismanagement During Administration: Liability of Guardian’s Sureties. Where the record discloses that the minor was unjustly deprived of a large part of his estate by mismanagement of the administratrix while the estate was yet in her hands as such, the sureties on her bond as guardian, during the same time, of her minor child, will not be held liable for ' her mismanagement and conversion during the administration.
    Appeal from Jackson Circuit Court. — lion. W. B. Teasdale, Judge.
    Affirmed.

      Marley, Swearingen é Utley for appellant.
    (1) Sureties cannot appeal in their own name and capacity as such from order of final settlement. Zinc Co. v. Hesselmeyer, 50- Mo. 180; Wilhite y. Ferry, 66 Mo. App. 460; Tuxbery’s Appeal, 67 Me. 267; Wood-bury y. Hammond, 54 Me. 332; Deering v. Adams, 34 Me. 44; Treadwell v. Burton, 8 Ala. 660'; Richardson v. Chevalley, 26 La. Ann. 551; In re McDermott’s Estate, 127 Cal. 4501; Lumber Co. v. Mimms, 49 La. Ann. 1294; Bank y. Barth, 74 111. App. 383; In re Scott’s Account, 36 Vt. 302. It clearly appears from the statute concerning guardianship, which requires a scire facias and judgment before an execution can issue against them, that the sureties are not a party to the judgment of final settlement and one not a party cannot appeal. Johnston v. Williams, 28 Ark. 478; Miller v. Bates, 56 Cal. 135; Beasley v. Prentice, 13 Sm. & M. 97. (a) Appellants must be parties to the judgment. Meyer v. Hotel Co., 163 Mo. 66; Payne v. Niles, 20 How. 219; Aiken v. Smith, 54 Fed. 894; Ex parte.Cutting, 94 U. S. 14; Elwell v. Fosdick, 134 U. S. 513; Guyon v. Ins. Co., 109 U. S. 173; Hesing v. Att’y-Gen., 104 U. S. 202; Rourke v. Goldstein, 86 111. App. 568; Sheldon v. Hinton, 9 111. App. 216; Heges y. Mace, 72 111. 472; Jager v. Dougherty, 61 Ind. 142; Coons v. Millett, 121 Ind.'585; Hodley v. Hill, 73 Ind. 142; Hammer v. Sexton, 69 Ind. 36; Scotland v. Co., 56 Cal. 625; McGinnis v. Wheeler, 36 Wis. 651; Haeldey v. Hope, 4 Keys 123. (b) Sureties are regarded as strangers to the judgment. State ex rel. v. Kennedy, 163 Mo. 516; Meyer v. Hotel Co., 163 Mo. 66; Cement Co. v. Neumeister, 15 Mo. App. 592; McCormack v. Hubbel, 4 •Mont. 87; Way v. Lewis, 115 Mass. 226; Cutler v. E.vans, 115 Mass. 27; Krawl v. Libbey, 53 Wis. 292. (c) Sureties being strangers to the record cannot take an appeal merely because the judgment may affect their interest adversely. State ex rel. v. Talty, 139 Mo. 391; Guy v. Orcott, 169 Mo. 407; Hoover v. Railroad, 115 Mo. 81; McEntyre v. Sholty, 139 111. 178; Coleman v. Oil Co., 25 W. Ya. 148. (d) The sureties are classed as to their covenants with such sureties as covenant that the principal shall do a particular act. State ex rel. v. Surety Co., 76 Mo. App. 240; State ex rel. v. Donegan, 12 Mo. App. 200; Irwin v. Backus, 25 Cal. 214; Nevitt v. Woodburn, 160 111. 203; Rice v. Wilson, 69 N. W. 336. (e) The sureties are estopped by the covenants of their bond from appealing. Woodbury v. Hammond, 54 Me. 332; Tuxbury’s Appeal, 67 Me. 267; Schofield v. Churchill, 72 N. Y. 570; Krawl v. Libbey, 53 Wis. 293; McCormick v. Hubbell, 4 Mont. 87; Rice v. Wilson, 69 N. W. 336; 1 Lord Raymond 328; 3 Com. Dig., 637; Byrd & C. v. State to use, 44 Md. 504. (f) The sureties are not parties to the record and they are bound by judgments, not because they are parties to the record, but by the force of their agreements. Taylor v. Hunt, 34 Mo. 205; State v. Holt, 27 Mo. 340; State v. Denney, 36 Mo. 288; Dix v. Norris, 66 Mo. 514; Yoemans v. Hoshaw, 86 Mo. 199; Assn. v. Kleinhoffer, 40 Mo. App. 402. (g) The appellant must have some legal interest in the estate which will be enlarged or diminished by the appeal. Orthwein v. Brown, 66 Mo. App. 320; McFarland v. Pierce, 151 Ind. 548; Woodward v. Speer, 10 Yt. 420; Heminway v. Corey, 16 Vt. 225; Adams v. Woods, 8 Cal. 315; Deering v. Adams, 34 Me. 41. (h) A person is aggrieved so as to be entitled to an appeal only when the decree operates upon his property or bears upon his interest directly. Shields v. Ashley, 16 Mo. 471; Deering v. Adams, 34 Me. 44; Bank v. Young, 53 Me. 555; Woodbury v. Hammond, 54 Me. 332; Tuxbury’s Appeal, 67 Me. 270; Black v. Kirgan, 15 N. J. L. 45; Downing v. Porter, 9 Mass. 366; Richardson v. Chevalley, 26 La. Ann. 551; Schwackhamer v. Kline, 25 N. J. Eq. 503; Deming’s Appeal, 34 Conn. 201; Norton’s Appeal, 46 Conn. 527; Wiggin v. Swett, 6 Met. 194; Ames v. Wood, 8 Cal. 315. (i) The test of the right of a third person to appeal is not that the judgment will operate as res adjudioata as to such third person. The true test is rather whether the third person asserts an interest in the res or suhject-matter of the judgment. Zumwalt v. Zumwalt, 3 Mo. 269; Shields v. Ashley, 16 Mo. 472; Ins. Co. v. Houchins, 52 La. Ann. 1137; Iloffel v. Stone-street, 6 Md. 303; Cecil v. Cecil, 19 Md. 72; State v. Markey, 21 La. 743. (j) Parties to the cause are persons interested or injured thereby. Zinc Co. v. Hesselmeyer, 50 Mo. 180; Edmond v. Scott, 78 Ya. 720; Woodey v. Clark, 17 S. C. 313; Loury v. Loury, 64 N. C. 110. (k) An appeal will not lie in favor of one against whom no judgment has been rendered. MeGreggor v. Pierson, 51 bYis. 122. (1) Sureties cannot defend. In re Scott’s Account, 36 Yt. 302; Jones v. Doles, 3 La. Ann. 588; Lee v. Clark, 1 Hill 56; Poiler v. Yolkenig, 11 Hun 385; Chamberlain v. Godfrey, 36 Yt. 380; Duffield v. Scott, 3 Tr. 374; Church v. Barker, 18 N. Y. 463; Leavitt v. Dodney, 40 How. 277; Hurd v. Lodge, 20 Pick. 53; Wyley v. Paulk, 6 Conn. 74; McLaughlin v. Bank, 7 How. 229; Train v. Gold, 5 Pick. 380. (2) The guardian filed her final'settlement, admitting under oath that the amount for which judgment was rendered was actually due. She is bound by such admission. Bruce v. Sims, 34 Mo. 246; Knoop v. Kelsey, 102 Mo. 291; Lenox v. Harrison, 88 Mo. 491; Ramsey v. Henderson, 91 Mo. 5601; Byrd & C. v. State to use, 44 Md. 504. (a) The judgment being rendered upon her own. admission, she cannot complain. “ Consensus toilet errorem.” Webb v. Webb, 3 Swanst. 658; Darden v. Leries, 2 Fla. 572; Garner v. Prewett, 32 Ala. 19; Wheeler v. Pope, 5 Tex. 262. (b) A confession of judgment operates as a release of all errors. U. S. v. Babbett, 104 U. S. 767; Wilson v. Collins, 9 Ala. 127; Winter v. Rose, 32 Ala. 447; Lewis v. Breckenridge, 1 Blaekf. (Ind.) 112; Merritt v. Clow, 2 Tex. 582; Garner v. Bnrleson, 26 Tex. 348; McDaniel v. Monday, 35 Tex. 39; McRae v. Turnpike, 3 Ran. 160: (c) The guardian admitted the amount due and the judgment is for such amount and is final. Garner v. Prewett, 32 Ala. 13; McBride v. Hunter, 64 Ga. 660; People v. Owners, 108 111. 442; Stewart v. Betzer, 20 La. Ann. 137; Cock v. Pope, 3 Munf. 167; Barnwell v. Harmon, 6 Mart. (O. S. La.) 388; Skinner V. Dameron, 5 Rob. (La.) 447; Railroad v. Brick Co., 15 Mo. App. 590: (d) No appeal can be taken by either party from such decision, since the error, if any, is his own, and not the court’s. Chapin v. Perrin, 46 Mich. 130; Brick v. Brick, 65 Mich. 230; Finch v. Carpenter, 29 Hun 268; Peterson v. Swan, 119 N. Y. 662; Monell v. Lawrence, 12 Johns. 534; Atkinson v. Maups, 1 Cow. 709; Williams v. Neil, 4 Heisk. 279; Jones v. Williamson, 6 Coldw. 76; Ringold’s Case, 1 Bland 9; Gable v. Williams, 59 Md. 51; Williams v. Williams, 7 Gill. 305; Geary v. Sheridan, 8 Ves. Jr. 192; Webb v. Webb, 3 Swanst. 658; Bradish v. Gee, Amble 229; King v. , Wightman, 1 Anst. 80; Darden v. Leries, 2 Fla. 572; Owen v. Yates, 75 Mich. 256; McCafferty v. Celluloid Co., 43 C. C. A. 540 ; Brown v. Iron Co., 134 U. S. 530. (e) A party in whose favor and upon whose motion an order is made cannot appeal. Garner v. Prewett, 32 Ala. 19; Winter v. Rose, 32 Ala. 447; Wilson v. McAdams, 10 Iowa 590; Thompson v. Perkins, 57 Me. 292; Winchester v. Winchester, 121 Mass. 128; Campbell v. Randolph, 3 Pick. 313; Hudson v. Allison, 54 Ind. 215; Lallande v. Jones, 14 La. Ann. 714; Patten v. Sterritt, 20 Me. 145; Railroad v. Ketchum, 101 U. S. 295; Schmidt v. Mining Co., 28 Ore. 25; In re Radivich, 5 Am. St. 466; Hooper v. Bucher, 109 N. Y. 609; Mintz v. Brock, 193 Pa. St. 294; Bank v. Kilgore, 43 S. W. 565; Clallam Co. v. Clump, 15 Wash. 593; Marsden v. Soper, 11 Ohio St. 504; Woodman v. Valentine, 22 Me. 401; Wheeler v. Pope, 5 Tex. 262; Dunman v. Hartwell, 9 Tex. 495; Laird v. Thomas, 22 Tex. 276. (f) Same rule where judgment was rendered upon facts reported by consent of parties. J ohnson v. Sped, 21 Pick. 225; 2 Ency. PI. and Pr., 99-102. (g) No appeal lies from judgment of dismissal at appellant’s request. Alieva v. Haggerty, 65 N. T. Supp. 690; Smith v. Lowery, 56 S. C. 493. (h) But the trial court performs no judicial act when an order, decree or judgment is entered by consent. Chapin v. Perrin, 46 Mich. 130'. (i) The purpose of an appeal is to bring up for review an erroneous action of the trial court. Chapin v. Perrin, 46 Mich. 130; Gridley v. Daggett, 6 How. Pr. 280. (j) The rights of the sureties are derivative, and they can only make the same defenses as the principal. Hughart v. Spratt, 78 Ky. 313; State ex rel. v. Judge, 22 La. Ann. 115; State ex rel. v. Weaver, 92 Mo. 673; Taylor v. Hunt, 34 Mo. 208. (k) The sureties are bound by the admissions of the principal made in due course of business. Blaif v. Ins. Co., 10 Mo. 567; Bank v. Kirbben, 48 Mo. 43; State ex rel. v. Weaver, 92 Mo-. 680'.; St. Louis v. Poster, 24 Mo. 146; Dobbs v. Justice, 17 Ga. 624; U. S. v. Cutter, 2 Curt. C. C. 617; Reynes v. Faeharies, 10 La. 127; Wilson v. Green, 25 Vt. 450. (3) The circuit court had no jurisdiction over the subject-matter of this appeal, for the reason that it is taken by the sureties in their name, character and capacity as such; no right is allowed by statute to sureties on guardians’ bonds to appeal in such manner. The right to appeal must exist by statute before it can be exercised. (a) The right of appeal is purely statutory. State ex rel. v. Woodson, 128 Mo. 514; St. Louis v. Talty, 139 Mo. 380; In re Story, 120' 111. 252; Bank v. Barth, 74 111. App. 383. (b) The statute provding for appeals from probate court is complete in itself and the general code only provides for appeals from judgments of circuit courts. Harrington v. Evans, 49 Mo. App. 376. (c) Section 3535, concerning guardians or curators, provides: “Appeals shall he allowed from any final order or judgment of the probate court under this chapter at any time during the term or within six months thereafter in like manner and with the same effect as appeals are allowed in cases of administration of the estates of deceased persons.” Section 278, concerning the administration of the estates of deceased persons,' provides, among other things, “That the right of appeal herein provided for shall extend to any heir, devisee, legatee, creditor or other persons having an interest in the estate under administration. ’ ’ In re Hardy’s Estate, 35 Minn. 194. (a) The circuit court could only exercise an appellate .jurisdiction. Lademan v. Lewis, 13 Mo. App. 585; In re Garver, 77 Mo. App. 459. (b) The circuit court, only exercising appellate jurisdiction, cannot acquire original jurisdiction. Robinson v. Walker, 45 Mo. 120; Greene v. Costello, 35 Mo. App. 134; Gosing v. Showengerdt, 24 Mo. App. 556. (c) Such appellate jurisdiction of the circuit court must exist or be conferred by law. Collier v. Wilson, 56 Mo. 420; Abernathy v. Moore, 83 Mo. 65. (d) The circuit court must confine itself strictly, to the appellate power given it. Kansas City v. Ford, 99 Mo. 94; Harris v. Hunt, 97 Mo. 571; Railroad v. Campbell, 62 Mo. 535■; Ellis v. Railroad, 51 Mo. 200. (e) The circuit court, when exercising a statutory appellate jurisdiction, its jurisdiction as an appellate court exists only by virtue of the statute, and any omission cannot be supplied by judicial construction. Taffe v. Ryan, 25 Mo. App. 553. (f) The circuit court could not enter judgment against the parties, but must certify its decision to the probate court. R. S. 1899, sec. 286; Branson v. Branson, 102 Mo. 6201. (g) The circuit court could only exercise an appellate jurisdiction, and could not render any judgment excepting an accounting. Cauley v. Truitt, 63 Mo. App. 259; Johnson v. J ones, 47 Mo. App. 237; In re Garver, 77 Mo. App. 459. (h) The circuit court could only exercise appellate jurisdiction and only has the same powers as the probate court itself had, and should have confined itself to the limitations placed upon the powers of the probate court. Woerther v. Miller, 13 Mo. App. 571; Pearce v. Calhoun, 59 Mo. 273; Coons v. Ward, 47 Mo. 200 ; In re Garver, 77 Mo. App. 459; Works on Jurisdiction, P'. 433; Lucida v. Madine, 3 Nev. 95; Johnson v. Jones, 47 Mo. App. 241. (i) The power of probate courts is limited to a devolution of assets to the parties entitled by devise or heirship, and it has no power to pass upon the rights or claims of third persons against the heirs, legatees or devisees of an estate in the course of administration, and no power to substitute such person in the place and stead of the representatives by blood or by will of the deceased owner except by consent. The jurisdiction to settle disputed rights and conflicting claims of ownership between such persons and such heirs or distributees is vested in courts of general jurisdiction. Jones v. Jones, 53 Mo. App. 217; Cauley v. Truatt, 63 Mo. App. 538; Bramell v. Cole, 136 Mo. 209; Coleman v. ’ Farrar, 112 Mo. 81; Yeoman v. Younger, 83 Mo. 424; Ford v. Talmage, 36 Mo. App. 71; French v. Stratton, 79 Mo. 562. (j) No jurisdiction is given to the probate court or to the circuit court in the exercise1 of an appellate probate jurisdiction, to take into consideration the question of liabilities of sureties on their bond and apportion their liabilities thereunder. Such questions belong to a court of general jurisdiction in an action on the bond. Brammel v. Cole, 136 Mo. 210 ; In re Garver, 77 Mo. App. 463; Woerner on Administration, sec. 151. (4) A guardian should keep his ward’s property separate from his own; otherwise, he will make it his own so far as to be accountable for its loss. Woerner on Guardianship, p. 205; White v. Parker, 8 Barb. 48; State v. Greensdale, 106 Ind. 364; Burrell v. Burrell, 78 Va. 574; Byrne v. Anderson, 67 Ga. 466; Michael v. Locke, 80 Mo. 548; Bush v. Bush, 33 Kan. 556. (a) Where the guardian invests money of ward in guardian’s own business, or any unauthorized business, the profits will go to the ward and the losses fall upon the guardian. Merritt v. Merritt, 62 Mo. 156; Downing v. Eeeley, 72 Ga. 562; Rogers v. Dickey, 117 Ga. 819. (b) The investment of the ward’s money in her own business by the guardian is a conversion for which the guardian is liable on her bond. State v. Buning, 74 Mo. 87; West v. West, 75 Mo. 204; Michael v. Loche, 80 Mo. 548; State v. Sanders, 62 Ind. 562; Stump v. Pfeifer, 58 Ind. 472; Bush v. Bush, 33 Kan. 556; Clay v. Clay, 60 Ky. 548; Lowry v. State, 64 Ind. 421; .Winstead v. Stanfield, 68 N. C. 40. (c) We are authorized by authorities to urge that if she mingled funds or employed it in her own business, she is chargeable for the highest rate thereon, compounded for the whole time. Woerner on Admn., p. 1138; In re Davis, 62 Mo. 450; Williams v. Petticrew, 62 Mo. 460; Estate of Camp, 6 Mo. App. 563, 74 Mo. 192; Cruce v. Cruce, 81 Mo. 676. (5) The guardian has been guilty of such gross negligence as to render her liable, not only for all money and property that actually came into her hands, but for all money and property and debts she could have, collected by the exercise of reasonable diligence. Woerner on Guardians, sec. 55; Taylor v. Hite, 61 Mo. 144; Merritt v. Merritt, 62 Mo. 157; Reynolds’ Appeal, 70* Mo. App: 579; Scudder v. Ames, 142 Mo. 233; In re Heffey, 10' Mo. App. 232. (a) The guardian is chargeable with the value of the property she ought to and might have recovered from herself as administratrix. State v. Branch, 134 Mo. 602; In re Haffey, 10 Mo. App. 232; Reynolds’ Appeal, 70 Mo. App. 579; Stark v. Attison, 43 N. H. 465; Ashley v. Martin, 501 Ala. 537; Woerner. on Guardianship, see. 60. (b) She would also be liable for negligence for not collecting funds from herself as administratrix. Burke v. Turner, 85 N. C. 500;' Bescher v. State, 63 Ind. 302; State v. Greensdale, 106 Ind. 364; Keenan’s Estate, 6 Kulp 67; Will’s Appeal, 22 Pa. St. 325; Horton v. Horton, 4 Ired. Eq. 54; Lynn v. Osgood, 58 Yt. 714; Harker v. Irish, 10 N. J. E'q. 269'. (c) In the absence of any evidence the guardian is presumptively liable for all debts uncollected, for she must show they are uncolleetable. Stewart v. McMurry, 82 Ala. 269; Seigler v. Seigler, 7 S. C. 317; Com v. Miller, 57 B. Mon. 205; Potter v. Hiseock, 30 Conn. 520*. (d) Being liable as guardian for the negligence in not collecting from herself as administratrix, she is chargeable with the highest rate of interest with annual rests. In re Davis, 62 Mo. 450; Bobb' v. Bobb, 89 Mo. 421; Frost v. Winston, 32 Mo. 489; In re Assignment, 129’ Mo. 499. (6) The guardian is not entitled to compensation to the extent of $35 per month for the support and maintenance of the ward during the period of the guardianship-, for on the death of the father it is the duty of the mother to support her infant children. Furnam v. Yansise, 56 N. Y. 435; Dennis v. Clark, 2 Cush. 349; Reynolds v. Swetzer, 15 Gray 78; Edwards v. Davis; 16 Johns. 284; Gilley v. Gilley, 79’ Me. 292; Reeves on Domestic Relations, 351 and 402; Dedham v. Natick, 16 Mass. 135; Nightingale v. Whitinton, 15 Mass. 272; Tyler on Infancy, 293 and 294. (a) The inability of a mother to support the -child during the time for which she asked pay for maintenance must affirmatively appear. Woerner on Guardians, sec. 104; State v. Roche, 91 Ind. 406, 94 Ind. 372. (b) Under ordinary circumstances a guardian is not allowed compensation for past maintenance. Folger v. Heidel, 601 Mo. 284; State to use v. Slevin, 93 Mo. 262; State to use v. Miller, 44 Mo. App. 123; State to use v. Martin, 18 Mo. App. 476. (7) The guardian is not entitled to the usual commission for the administration of the estate on account of her mismanagement of the same. State v. Richardson, 29 Mo. App. 595; Reed v. Ryburn, 23 Arle. 47; Farwell v. Steen, 46 Vt. 678; Burke v. Turner, 85 N. C. 500; Seguin’s Appeal, 103 Pa. St. 159. • (8) By giving the receipt signed by herself as guardian to herself as administratrix for $5,252.01, and she being then and there worth from fifty to sixty thousand dollars, she becomes at once liable as a guardian. Weaver v. Thornton, 63 Ga. 655; Crenshaw v. Crenshaw, 4 Rich. Eq. (S. C.) 14; In re Scott, 36 Vt. 297; Davis v. Davis, 10 Ala. 299; Pfeiffer v. Knapp, 17 Fla. 154; Moore & M. v. Felkel, 7 Fla. 75; Byrd & C. v. State to use, 44 Md. 504. (a) If she as guardian receipted to herself as administratrix, she is concluded thereby. Pfeiffer v. Pfeiffer, 17 Fla. .144; Crawford v. Brewster, 57 Ga. 226; State v. Roeper, 9 Mo. App. 21. (b) When she settled her former trust and had in her possession funds. sufficient to pay the amount due, she became liable as guardian. Matter of Novil, 10 N. Y. App. Div. 355; Myers v. Wade, 6 Rand. 444; Marris v. Harrison, 78 N. C. 202; Ilarker v. Irick, 10 N. J. Eq. 272.
    Lathrop, Morrotv, Fox <& Moore and Gage, Ladd & Small for respondents.
    (1) Appellant relies, apparently, upon three propositions. The first is that the sureties upon the guardian’s bond have no right to appeal. This contention seems to be fully answered by section 278, Revised Statutes 1899, which gives the right of appeal on all settlements of executors and administrators to any heit, devisee, legatee, creditor or other person having an interest in the estate under administration. By section 3535, Revised Statutes 1899', an appeal is allowed from any final order or judgment of the probate court in guardianship matters in like manner and with the same effect as in appeals in cases of administration. Certainly sureties on the appeal bond of a guardian have an interest in the estate, and come within the wording of the statute. Section 806, Revised Statutes 1899, in the Code of Procedure, gives the right of appeal to any party to a suit aggrieved by any judgment. Nolan v. Johns, 108 Mo. 431; Loehner v. Hill, 19 Mo. App. 141. As soon as the judgment was rendered by the probate court against respondent, her bondsmen became parties to the suit and entitled to appeal. They were persons aggrieved by the judgment, and, therefore, entitled to appeal. Zumwalt v. Zumwalt, 3 Mo. 269; State ex rel. v. Talty, 139 Mo. 379 ; Wauchope v. McCormick, 158 Mo. 660; Weer v. Gand, 88 111. 490; Farrar v. Parker, 85 Mass. 556; Garber v. Commonwealth, 7 Pa. St. 265; Belcher v. Branch, 11 R. I. 226; Hotchkiss v. Platt, 7 Hun 56; Patterson v. Gathings, 48 Miss. 639; Porter v. Burton, 57 Tenn. 584. (2) But appellant also raises the question as to the correctness of the judgment of the circuit court in striking from the judgment of the probate court the item of $5,252.01, which the guardian attempted to pass from her hands as administratrix of her husband’s estate to herself as guardian, merely by receipt, no money or property passing, together with the interest upon that item. We also urge the court to pass upon this point, and submit that the circuit court was correct in striking out this item. State ex rel. v. Elliott, 157 Mo. 609; State ex rel. v. Branch, 151 Mo. 622, 134 Mo. 592. (3) We have attempted to meet and answer all the points relied upon by appellant and urged in his brief. We assume that this court, in its equity jurisdiction, will render such judgment upon the record before it as the court shall find proper and right. We think this is the duty of the court under the law. In an equity case, the appellate court may not only reverse the judgment of the trial court, but enter appropriate decree affording that relief to plaintiff which he should have received in the court below, or dismiss the case for want of equity. Darrier v. Darrier, 58 Mo. 222; Ringo v. Richardson, 53 Mo. 385; Hoff v. Shepard, 53 Mo. 242. In an equity case, an appellate court may enter such a decree as was the necessary legal and logical consequence of the finding of the trial court which found the issues for plaintiff, and committed error in the decree which it entered upon the finding. Under such circumstances, there is no reason for granting a rehearing in the cause. Kinealy v. Macklin, 2 Mo. App. 241. The authorities to the effect that, instead of reversing and remanding a case of this character, the Supreme Court will enter such judgment as the circuit court should have entered, are numerous. Pfau v. Breitenburger, 17 Mo. App. 19; Widdicome v. Childers, 84 Mo. 382; Nelson v. Betts, 30 Mo. App. 10; Carroll v. Campbell, 25 Mo. App. 630. The appellate court hears an equity case de novo, but it is, of course, necessary that exceptions be taken and properly preserved. Lilly v. Menke, 92 Mo. App. 354; Bank v. Colem, 60 Mo. App. 79; State ex rel. v. Gruinotte, 156 Mo. 513; Benne v. Schnecko, 100 Mo. 250; McElroy v. Maxwell, 101 Mo. 294.
   FOX, J.

This cause is brought here by appeal from a judgment of the circuit court of Jackson county, Missouri. In order to determine the legal propositions involved in this controversy, it is sufficient to make a very brief statement of the facts.

Sometime prior to May 24, 1880, Henry L. Switzer of Jackson county, Missouri, died. His'widow, Josephine Switzer, was appointed administratrix of his estate by the probate court of said county. She administered said estate and on August 24, 1882, was discharged by the order of said court. Henry L. Switzer left surviving him the widow and five minor children. On the 24th day of May, 1880, while the administration of Henry Switzer’s estate by the widow was pending, the probate court of Jackson county, Missouri, at Kansas City, appointed the widow, Josephine Switzer, the guardian of the person and estate of her minor children, of whom appellant in this case-, Henry W. Switzer, was one. The widow, Josephine Switzer, gave bond as guardian in the sum of $9,000, with J. A. Bachman and Frank Askew as securities. On May 20, 1882,- there was a final order of distribution of the estate of Henry Switzer, deceased, and notwithstanding Josephine 'Switzer, the widow, had, in 1880, been duly appointed by the probate court of Jackson county, Missouri, guardian of her minor children, she, on the 20th day of May, 1882,made another application for appointment as guardian of her minor children and the probate court granted such application, and made an order of appointment, fixing her bond at $40,000. She gave the bond with Henry J. Hucke and Henry Tobener as securities. On the 24th day of August, 1882, Josephine Switzer as guardian of Henry W. Switzer, this appellant, gave a receipt to herself as administratrix of Henry Switzer, deceased, for $5,252.01. Similar receipts for the other minor children were filed by the administratrix and she was discharged as such administratrix. It is conceded by the record in this cause that there was no money actually passed from herself as administratrix of the estate of -Henry Switzer, deceased, to herself as guardian of Henry W. Switzer, this appellant. Josephine Switzer as guardian made numerous annual settlements. It can serve no good purpose to give in detail those settlements. It is sufficient to refer to the final settlement which was allowed and approved by the court, over which the- main contentions in this proceeding arise.

In some of the guardian’s settlements she had been allowed one thousand dollars a year for support of a. ward, but in ber final settlement these allowances were abandoned and she was charged with the $833.33 life insurance money and interests, the $5,252.01, which she had in her hands as administratrix, and as such had taken her receipt, as guardian for, with interest, and the $6,270.83, which she received from a sale of real estate belonging to herself and her children, and she asked for credit for $6,540 for the board, maintenance and education of her ward, at $30 per month, for eighteen years and two months, for a credit for $2,977.78 for her conveyance to him of one-sixth of the business property, for costs of the probate court $30, and $1,-156.97 commissions at five per cent, and $37 cash paid to the ward, making a balance due the ward of $12,-327.78.

It was admitted on the hearing that the ward had received an additional $247, which was allowed as a credit, and the balance was approved by the court, showing Mrs. Switzer indebted to the ward for $12,-150.78. This settlement was approved by the probate court. Prom this settlement, Prank Askew and J. A. Bachman, securities for the guardian on her first bond of $9,000, appealed to the circuit court. On the trial in the circuit court the item of $5,252.01 was stricken' out, with all interest on it, on the ground that she was not chargeable, as guardian, with it, as it had never, in fact, come into her hands as guardian. The court also allowed her $35 per month for the maintenance and schooling of the ward, and also allowed her the sum of $613.15 for commissions. The balance found in her hands by this settlement is $3,963.34, and from this Henry Switzer, the ward, has appealed to this court.

This is a sufficient statement to enable us to determine the legal propositions involved in this proceeding. The record is now before us for consideration.

OPINION.

The record in this cause discloses the following assignments of error:

That the court erred, 1st: In entertaining the appeal, or, in other words, the securities in such cases have no right to appeal.

2nd. In striking out the item of charge, $5,-252.01, the amount receipted for by the guardian to herself as administratrix, but not paid over.

3rd. In increasing the monthly allowance for board, lodging, clothing and other expenses of support and maintenance, from $30 per month, as claimed by the guardian, to $35.

4th. In allowing credit for $613.15' for commission.

I.

It is manifest from the brief of learned counsel for appellant that the vital and most important question involved in this proceeding is the right of the sureties on the guardian’s, bond to appeal from the final settlement of the guardian, made and approved by the probate court of Jackson county.

This proposition necessitates the consideration of the statutes conferring the right of appeal. The sections of the statute pertinent to this question are, first, section 278, which provides that the right of appeal in cases involving the administration of estates shall extend to any heir, devisee, legatee, creditor or other person having an interest in the estate under administration. Section 3535, Revised Statutes 1899, provides for the right of appeal from any final order or judgment of the probate court in guardianship matters in like manner and in the same effect as in appeal in cases of administration.

The question to be answered in this proceeding is, have the sureties upon the guardian’s bond such an interest in the administration of the estate of a minor as to bring them within the provisions of the statute conferring the right of appeal in such cases?

It is earnestly insisted by learned counsel for appellant'that the sureties upon Mrs. Switzer’s bond as guardian for the appellant, were not parties to the proceeding in the probate court, had nothing to do with the final settlement, and therefore have no right of appeal. We are unable to give our assent to this contention. The very terms of the statute indicate that the Legislature did not intend to limit the right of appeal to simply .those who were parties to the proceeding. The statute applicable to administration of estates gives the right of appeal to any heir, devisee, legatee, creditor or other person having an interest in the estate. This provision certainly does not contemplate, as a condition precedent to- the right of appeal, that the persons enumerated must necessarily be parties to the proceeding. We are unable to conceive of any persons who are more interested in the administration of a minor’s estate (other than the minor himself), than the sureties on tlie guardian’s bond. Their contract upon the bond makes them responsible for all the acts of the guardian respecting the administration of his ward’s estate; therefore, they are deeply interested in the fair and proper administration of the estate and the distribution of the assets. Upon a careful consideration of the provisions of the statute applicable to appeals in cases of this character, we are decidedly inclined to the opinion that the sureties on the guardian’s bond are persons that have such an interest in the administration of the estate as confer upon them the right of appeal from a judgment approving the final settlement of the guardian, for whose acts and conduct they are sureties.

In 2 Cyc. Law and Procedure, 638, in the text, we find this general rule announced: “The sureties on an official bond become parties to the record by a judgment against the principal on the hond, and may appeal from snch judgment. ’ ’ Numerous authorities are cited in support of the rule announced in the text from various States, including our own State. The reason assigned for this rule, and we confess that it is a good one, is that “in the absence of fraud or collusion, a judgment against a principal is conclusive as against his surety.” Therefore, we can readily see the interest the surety has in a judgment, which so far as the record is concerned, only' purports to affect the principal.

While this proposition of the right of appeal on the part of the surety from a judgment against his principal has never been sharply presented to any of the appellate courts of this State, yet we find that jurisdictions has been entertained in such cases. In re Tucker, 74 Mo. App. 331, was very similar to the case at bar, and while the question as to the right of appeal is not discussed, yet it is manifest that the court entertained jurisdiction and determined the case upon its merits.

This court, in Nolan v. Johns, 108 Mo. 431, very clearly announces the rule applicable to the right of appeal. While in that case the court had in judgment the statute applicable to appeals from the circuit court in civil cases, yet the principles announced are clearly applicable to the proposition now confronting us in this proceeding. The distinction between the statute in judgment before the court in that case and the statute applicable to the case at bar is very slight. Section 3710, Revised Statutes 1879', gave the right of appeal to every person aggrieved by any final judgment or decision of any circuit court in any civil cause. The statute as applicable to this case gives the right of appeal to any heir, devisee, legatee, creditor or other person interested in the estate under administration. In the ease last cited the question of the rights of sureties upon an injunction bond was involved. There was a judgment in the circuit court against the principal in the bond alone and the sureties sought to be heard but were refused, and they prosecuted an appeal. It was insisted in that case, as it is in the case at bar, that there was no right of appeal on the part of the sureties. Judge Macearlane, in speaking for this court, thus clearly treated the question. He said: “It is clear that it was not intended that the right of appeal should be limited to persons who were technically parties to the suit, and against whom the judgment was directly rendered. ‘Every person aggrieved’ includes every person whose rights were in any respect concluded by the judgment. The use of the designation ‘person’ instead of ‘party’in a chapter of the statute treating exclusively of practice and proceedings in civil cases, is itself suggestive that others than those, technically parties to a suit and judgment should have the right of appeal. Furthermore, it is right and just that any person whose interests are injuriously affected and concluded by a judgment should have the right to a review, by the appellate court, of the proceedings which resulted in such judgment.” During the course of the opinion the learned judge in further treating of the question presented, said: “But it is insisted that, as no judgment was in fact rendered against the sureties, their rights are not affected by the judgment against the principal alone. We do not think the conclusion follows. The conditions of the bond were that plaintiff ‘shall pay all sums of money, damages and costs that shall be adjudged .against him [the principal] if the injunction shall be dissolved.’ The rule is that, ‘wherever a surety has contracted in reference to the conduct of one of the parties in some suit or proceeding in the courts, he is concluded by the judgment,’ if free from fraud and collusion. [Freeman on Judg. (4 Ed.), sec. 180; Towle v. Towle, 46 N. H. 434; Methodist Churches v. Barker, 18 N. Y. 463; McAllister v. Clark, 86 Ill. 236; Hotchkiss v. Platt, 7 Hun 56, affirmed, 66 N. Y. 620.] These sureties, by the very terms of their contract, undertook to pay all damages that should be adjudged against their principal. The amount of damages assessed, if unaffected by fraud or collusion, will bind the sureties under the terms of their undertaking, notwithstanding a judgment might also have been entered at the time of assessment against them. We conclude that the appeal was properly taken by the sureties. ’ ’

In support of the conclusions reached 'in Nolan v. Johns, supra, the case of Farrar v. Parker, 3 Allen (Mass.) 556, was cited with approval. The Massachusetts ease is strikingly similar to the case at bar. The Supreme Court of that State, in discussing the proposition of the right of appeal on the part of sures ties, said: “If there be any sufficient reason for sustaining the appeal in the two cases first cited, a much stronger ground exists here for the sureties in the bond of the guardian to appeal and contest this decree. The principal is dead; his estate is insolvent; the sureties are the persons to be called upon to make good the delinquency thus found to exist on the part of the guardian. This decree, if once properly established, fixes the amount of liability of the sureties on their bond. In. ordinary cases of a solvent principal, whose property was ample to respond for all sums with which he might be charged, the sureties would have no immediate interest, nor can it be supposed that they would attempt to interpose against the will of the principal, if they had the power to do so; but, in a case like the present, where the principal is dead and his estate is insolvent, they are directly interested and affected by the decree; and they are persons aggrieved by it, if the amount of the indebtedness of the guardian is settled upon wrong principles. ’ ’

In McCartney v. Garneau, 4 Mo. App. 567, one of the early eases by the Court of Appeals of this State, it was ruled that “a final settlement by a surviving partner, in the probate court, is not ex parte, but is made upon notice, and has the effect of a judgment. If not appealed from,' it binds the sureties of the administrator of the partnership estate; they have the right of appeal from the settlement. ’ ’

The leading case relied upon by appellant as announcing a rule in conflict with the conclnsions as herein indicated, is Zinc Co. v. Hesselmeyer, 50 Mo. 180. A careful analysis of that case will make it manifest that it in no way conflicts with the rules upon this proposition heretofore announced. It will be" observed that the judgment sought to be appealed from by the sureties upon the bond was simply one dissolving the injunction,. There was no judgment for any amount against the principal or the sureties, and they were in no sense parties to the original proceeding which simply involved the legal proposition as to whether the injunction was properly granted or not. But it would be entirely a different case, if after the dissolution of the injunction the court had proceeded • to assess the damages and render judgment against the principal alone,, for in that case the sureties would be interested in the amount of damages assessed, whether they were correctly assessed and whether or not the proper elements of damage were duly considered, and from a judgment of that character the sureties unquestionably would have had the right of appeal.

While it is true that the right of appeal is purely statutory and persons who avail themselves of such right must be embraced within the provisions of the statute conferring such right, yet the tendency of judicial opinion is that cases should be tried upon their merits and the right of appeal should not be unduly restricted; and where it is made apparent that persons seeking the right of appeal have a substantial interest in the subject-matter of the controversy, if by a fair and reasonable interpretation of the statute they can be brought within its provisions, the court should not hesitate to allow them the right of appeal.

• We are unwilling to say in this case that the sureties, who were liable for the amount shown by the final settlement of the guardian, who is the mother of this appellant, have no such an interest in the administration of that estate as would authorize them to appeal from the approval of a final settlement, and have a hearing ini the appellate court as to the correctness or incorrectness of the statement of the account of such final settlement. Our conclusion upon the first proposition is that the sureties on Mrs. Switzer’s guardian bond had the right to appeal.

II.

It is insisted by appellant that the court erred in striking out the item of charge of $5,252.01, the amount receipted for by the guardian to herself as administratrix, but not paid over.

Upon this proposition the record discloses beyond question that Josephine Switzer as administratrix of the estate of Henry L. Switzer, deceased, did not in fact transfer the assets and take charge of the same herself as guardian of Henry W. Switzer. She simply gave herself, as guardian, a receipt to herself as administratrix, without any payment of money, and this is practically conceded by the record. We are of the opinion that she could not discharge herself and her sureties as administratrix and impose a liability on herself an/d her sureties as guardian in this sort of way; and this conclusion finds support in the recent cases of State ex rel. v. Elliott, 157 Mo. 609; State ex rel. Hospes v. Branch, 151 Mo. 622; State ex rel. Hospes v. Branch, 134 Mo. 592.

III.

Appellant complains of the increase of monthly allowance of hoard,- lodging, clothing and other expenses of support and maintenance from $30' per month as claimed by the guardian, to $35 per month. The trial court had the evidence upon this subject before it and we have no disposition to interfere with the allowance made.

IY.

It is insisted by appellant that the court erred in allowing credit for $613.15 for commissions to the guardian. . This was a matter purely within the discretion of the court. While it must be confessed that the record in this case discloses a very careless method of administering the estator of a minor, yet it is also disclosed that she made numerous annual settlements of this estate, and her improper methods of doing business, it seems, were never -discountenanced by the pro-hate court. It further appears from the settlement in the probate court that appellant insists on having stand in this court that greater commissions were allowed than those allowed by the circuit court, upon a restatement of the account with the guardian,. We shall not interfere with the discretion of the trial court who had all the parties before it, and the court held in the community where this estate was administered, and we are disposed to defer to its statement of the account between these parties.

The respondents in- their brief insist that this court should again restate the account and give the guardian credit for the items of $2,977.78 and $247, paid the ward and credited in the probate court. It is insisted that this was an oversight in the statement of the account by the circuit court. The respondents are not appealing in this case. The attention of the trial court was in no manner directed to what is now claimed was a mistake. It may be upon a re-statement of bis account that the appellant, as to these two items, would like to be heard. Therefore, that question could only be adjusted by reversing and remanding the cause. There is no appeal upon the part of the respondents in this case asking for the reversal of this judgment on the ground of those errors, if they were errors.

In view of the record before us we are unwilling to make any further change in the statement of the account as made by the trial court. While it may be seriously complained of that the appellant in. this case has been deprived unjustly of a large part of his estate, yet the record discloses that the principal mismanagement of this estate occurred during the administration of the estate of his father. In fact, the record shows beyond question that the conversion of large amounts of property took place during- the administration of the estate of Henry Switzer, deceased, and the present sureties upon the guardian’s bond should not be made liable for the misconduct and mismanagement of the estate during the administration. They should only be required to account for that part of the estate that actually went into the hands of Josephine Switzer as guardian of Henry Switzer.

Finding no reversible error in the trial of this cause, there is nothing left to be done except to affirm the judgment, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    JAICKS v. MARTHA G. MERRILL, Appellant.
    Division Two,
    December 22, 1906.
    1. TAXBILLS: Kansas City: Signed by Authorized Person: Clerical Work. The charter provided that “all special taxbills provided for by this charter shall be made out and certified by the president of the Board of Public Works, or in his name by any person by the Board of Public Works thereunto specifically authorized by resolution in writing and recorded in books to be kept by such Board of Public Works, and signed by the president of the board,” and the board by resolution, recorded in a book kept by it, signed by the president, a/uthorized Edward B. Silkwood, who was chief clerk in the Engineer’s Department, “to stamp the name of T. M. Spofford, president, by him, to all special taxbills that may be issued in payment for public works done in Kansas City, Missouri.” Held, that the taxbills were not void because the signature of the president of the board was signed by Silkwood, nor does a reasonable construction of the charter require the president, with his own hand, to do all the clerical work of making out the taxbills.
    2. -: -: -: -: Delegation of Authority. A requirement that the arithmetical work of apportioning the total cost to the several lots benefited by the improvement be done by the clerks in the City Engineer’s office, was not a delegation to those clerks of the authority of the Board of Public Works or of the City Council, under a charter which required the board to “apportion, or cause to be apportioned, .the cost of said improvement and issue taxbills therefor” upon approval by the City Council of the recommendation of the Board of Park Commissioners, etc.
    3. -: Installment: Unpaid: Maturity of Remainder: Pleading. All the pleader is required to do is to make a plain and concise statement of the facts which constitute the cause of action; it is not necessary to plead evidence. Where the charter provided that upon default in the payment of any installment of taxbills, all remaining installments should immediately become due, it is only necessary to charge that the particular taxbill is now due and unpaid, and it is not necessary to charge that they are due and unpaid because of default in the payment of the first installment.
    4. -: Unpaid Installments: Proof. Where there is no plea of payment and the taxbills themselves on their face show that some installments were due and unpaid when suit was brought, there is no need for specific proof that the remaining installments were due and unpaid, in view of the provisions of the charter that upon default in the payment of some installments all shall become due. In such case if the first installments have been paid, that is a matter of affirmative defense.
    5. -: Charter Provisions: Compelling Council to Adopt Recommendations of Board: Constitutionality. The charter provided that if the Board of Park Commissioners recommended to the Common Council that certain improvements of boulevards be done, it shall be the duty of the Council by ordinance to order the work to be done, in which case the Board of Pub.lic Works shall apportion the cost of the work and issue special taxbills, “in the same manner and with the same effect as the cost of similar work is apportioned upon streets not under the control” of the Park Board; and the Council acquiesced in the recommendation of the Park Board. Held, that the charter provision confers no power on the Park Board to legislate, and whether or not the Council could be compelled to adopt the board’s recommendations is not in the case, since it did adopt the recommendation of the board.
    6. -: Indorsement of Recommendation: General and Special Provisions. Where the charter provides that “no resolution or ordinance” for the improvement of a street “shall be passed except upon the recommendation of the Board of Public Works indorsed thereon,” and another charter provision places the improvement of roads, parkways and boulevards in the park districts under the control of the Board of Park Commissioners and provides that the Council “upon the recommendation” of said board shall provide for the improvement, the first provision is general and the other an exception thereto, and both can stand, and a failure of the Board of Public Works to indorse the recommendation of the Park Board, for an improvement, in the park district, is not fatal to the taxbills.
    7. -: Grade: In Park District: Indorsement. Under the circumstances of this case, it is ’ held that the taxbills are not invalid because the recommendation of the Park Board to pave a street in the park district did not contain “the certificate of the Board of Public Works that the grade proposed to be established conformed to the system of' grades established by said board.”
    8. -: Contract: Indefiniteness. The property-owner, if he wishes to have the taxbills declared invalid on the ground that its provisions and specifications were so vague and indefinite, as to the manner and extent of the work to be done, as to shut out the competitive bidding required by the charter, should plead such matters, for they are matters of affirmative defense.

      9. -: -: -: No Objection: While Work Progresses. The property-owner who stands by and sees the street improvement go on and makes no objection to the provisions and specifications contained in the contract or that there was a defect in the proceedings, and takes no step to stop the work, can not, after it is completed, defeat the contractor in his suit on the taxbills,.on those grounds.
    Appeal from Jackson Circuit Court.— Hon. W. B. Teasdale, Judge.
    Aeetrmed.

      Johnson & Lucas for appellant.
    (1) The special taxbills sued on, are void and should not have been received in evidence, because they were not made out by the president of the Board of Public Works nor by a person thereunto specially authorized by the board of Public Works. Art. 9, sec. 15, Kansas City Charter; Warren v. Ferguson, 106 Cal. 535; Stifel v. Cooperage Co., 38 Mo. App. 340; City of Sedalia v. Donohue; 190 Mo. 408. Plaintiff was required to allege and prove the due execution of the special taxbills sued on, to entitle him to introduce them in evidence or to recover thereon. Reccius v. City • of Louisville, 66 S. W. 410'; City of Louisville v. Kimmel, Id. 608; Miller v. Wells, 5 Mo. 6; Stifel v. Southern Cooperage Co., 38 Mo. App. 340; Eyermann v. Payne, 28 Mo. App. 78; Warren v. Ferguson, 108 Cal: 535; Young v. Clarenden Township, 132 IT. S. 340. (2) The third and fourth installments of the special taxbills were not due and payable on their face when this suit was filed, and though this suit was authorized by the Kansas City charter on proof of a default of payment on the first or second installment, yet no proof of this default was offered; hence, the finding should have been for defendant on the first, fourth, fifth and eighth counts of the petition. Kansas City Charter, art. 9, sec. 23; Shearer v. Corbin, 1 McCrary, 306; EEaegel v. Mallinekrodt, 46 Mo. 577; Gregg v. Jessberg, 113 Mo. 144. (3) Section 17 of article 9 of the State Constitution gave to the mayor and council of Kansas City all of the discretion as to what public highways therein should be improved and how they should be paid for, and therefore nullifies section 31 of article 10' of the Kansas City charter, which transfers this discretion to the Board of Park Commissioners. Neil v. Gates, 152 Mo. 594. (4) The city ordinance No. 9440, ordering the alleged work, as a proceeding under article 9, section 2, of the Kansas City Charter, is unauthorized and void, because no rer commendation of the Board of Public Works is endorsed thereon. Perkinson v. McGrath, 9 Mo. App. 26; St. Louis v. Gleason, 89 Mo. 67. (5) The finished surface of the alleged public improvement was not brought to the grade of a lawful city ordinance. Brady & Kirby v. Rodgers, 63 Mo. App. 222. (6) The contract for this improvement is void, because its provisions and the specifications, on which it was let, are too vague and indefinite in the description of the materials, manner and extent of the work to admit of the competitive bidding required by the Kansas City charter (Art. 17, sec. 12) and by the ordinance No. 6567. Packard v. Hayes, 94 Md. 233; Coggeshell v. Des Moines, 78 Iowa 235; Piedmont Paving Co. v. All-man, 136 Cal. 88; Chippewa Bridge Co. v. Durand, 122 Wis. 85. (7) The special taxbills sued on are unauthorized and void, because the contract delegates to the Board of Park Commissioners authority to determine the manner and extent of the work. Stansubury v. White, 121 Cal. 433; Grant v. Barber, 135 Cal. 188; Chase v. Shearer, 136 Id. 248; City of Bluffton v. Miller, 33 Ind. App. 521; Lundberg v.-City, 183 111. 572; Bradford v. City, 165 Id. 612; DeWitt Co. v. City of Clinton, 194 Id. 521; Hyde v. Joyes, 4 Bush (Ky.) 464; Neill v. Gates, 152 Mo. 586. (8) Defendant is mot estopped to make any of the stated defenses to the special taxbills: First. Because these defenses go to the very ground-work of the proceedings. Perkinson v. Hoolan, 182 Mo. 189; Collier Est. v. Western P. & S. Co., 180 Mo. 364. Second. Because there is mo proof that the defendant knew of any of the objections here made to the special taxbills before or during the alleged work. Perkins v. McGrath, 9 Mo. App. 26; Keane v. Klansmam, 21 Id. 485; Galbraith v. Newton, 30 Id. 380; City of St. Joseph v. Dillon, 61 Id. 317; Verdin v. St. Louis, 131 Mo. 99. Her own testimony was positively to the contrary.

      T. B. Buckner for respondent.
    Appellant having had personal knowledge of the work being done, and of the passage of the ordinance, having stood still until the contractor had expended his money and finished his work in direct accordance with his contract, is now estopped to plead any of the irregularities relied upon and raised by her in this case. Supposing or admitting some of the objections complained of are irregular, they are not such as will invalidate the taxbills sued on. It is only such defects as affects the substantial rights of the property-owner which will render1 the taxbills void. Shehan v. Owen, 82 Mo. 464; Ross v. Stackhouse, 114 Ind. 200; Cole v. Strainka, 105 Mo. 309; Morse v. City of Westport, 110 Mo. 502; Johnson v. Duer, 115 Mo. 381; Gibson v. Owen, 115 Mo. 269; Warren v. Barber Paving Co., 115 Mo. 580; Herman on Estoppel, sec. 1221; Barber Pav. Co. v. Edgerton, 125 Ind. 455; Clements v. Lee, 114 Ind. 399; Pretzinger v. Harness, 114 Ind. 498. On the question of estoppel, see Planet Property Co. v. Railroad, 115 Mo. 613; Hellencamp v. City of Lafayette, 30 Ind. 192; Palmer v. Stumpf, 26 Ind. 329; Lafayette v. Fowler, 34 Ind. 146; Gibson v. Owen, 115 Mo. 258; Ritchie v. South Topeka, 38 Kan. 374; Warren v. Barber Asphalt Paving Co., 115 Mg'. 580; Traphagen v. Mayor, 29 N. J. Eq. 209; Elliott on Roads and Streets (2 Ed.), sec. 590; Heman v. Ring, 85 Mo. App; 231; Barber Asphalt Pav. Co. v. Hezel, 76 Mo. App. 135, 155 Mo. 391.
   GANTT, J.

This is an action on special taxbills for macadamizing Benton boulevard from Independence boulevard to Fifteenth street in Kansas City, Missouri, under an ordinance of said city numbered 9440, approved March 14, 1898, said special taxbills being numbered 9 and 12, and issued in installments. The improvement for which these taxbills were issued was conducted by the Park Board of Kansas City, for the changing of Walrond avenue, a street in Kansas City, into Benton boulevard. The case came on for hearing at the April term, 1903, of the circuit court, before Judge Teasdale, one of the judges of said court, and the jury was waived, and after1 the hearing’ of the evidence the court rendered judgment for the plaintiff, awarding the plaintiff a lien upon the adjoining lots of the defendant. In due time a motion for a new trial was filed, heard and overruled, and the defendant appealed to this court. Inasmuch as the defendant challenged the constitutionality of section 31 of article 9 of the Kansas City Charter, the appeal is properly in this court.

The evidence tended to prove that on the 18th of June, 1899, the Board of Park Commissioners of Kansas City advertised for bids for building the roadway and macadamizing Benton boulevard, for which work the taxbills in suit were issued. On the 3rd day of August, 1899, the contract for this work was awarded to the plaintiff. After the contract was let to him, the Board of Park Commissioners sent an ordinance to the Common Council asking that said contract be confirmed. This ordinance was referred by the Council to the Public Improvement Committee, and was passed by the Council about the 10th or 12th of October, 1899. Soon after said contract was confirmed, the plaintiff commenced the work and continued the same uninterruptedly until finished. The work was finished within the time named in the contract and the taxbills therefor were issued on the 30th day of June, 1900', and were delivered to the plaintiff and receipted for by him on the taxbill register on the 2nd day of July, 1900'. The kind and quality of material named in the contract was furnished by the plaintiff. After a careful examination and reading of the whole record, we can find no objection made by the defendant that the work was not completed in all respects as plaintiff had undertaken and agreed to do' by his contract, nor that it was not completed within the time mentioned therein. No evidence was introduced that the price charged was un-. reasonable. The errors complained of are those alleged to have been committed by the Park'Board and the city authorities. These alleged errors will be considered in connection with the assignments of error on this appeal.

I. It is insisted that the special taxbills sued on are not shown to have been made out and executed by the officials of the city as provided by the city charter. The charter of Kansas City was adopted and became operative May 9, 1889, pursuant to the power conferred by section 16, article 9, of the Constitution of Missouri, upon cities having a population of more than one hundred thousand inhabitants. By section 31 of article 10 of the charter it is provided: ‘ ‘ The Board of Park Commissioners shall have power to cause any road, parkway, boulevard, or avenue, or part thereof, which may be under its control or management, to be. graded, regraded, paved, repaved, guttered, reguttered or otherwise improved or repaired, including the construction and repair of bridges, viaducts and sidewalks in such manner and at such times and with such material as said board may determine, and may pay for such work or improvements or any part thereof out of the funds not otherwise appropriated belonging to the park district in which such work or improvement is made, or out of the general park fund; provided, however, that if the Board of Park Commissioners shall recommend to the Common Council that any such work to be done and the payment of the whole, or any portion thereof, be made in special tax bills, it shall be the duty of the Common Council, by ordinance, without petition of the property-owners therefor, or right of remonstrance, to order such work to be done, in which case the Board of Public Works of said city shall apportion, or cause to be apportioned, the cost of said work of improvement and issue special taxbills therefor, or for any portion thereof so ordered to be paid in taxbills, in the same manner and with the same effect as the cost of similar work or improvements, is apportioned, and taxbills in payment therefor issued, in such city for public improvements upon streets not' under the control or management of such Board of Park Commissioners: Provided, further, that when any parkway or boulevard has been constructed, paved, guttered and otherwise improved at the expense of the adjoining property, such parkway or boulevard shall thereafter be maintained at the expense of the park district in which the same is situated, or out of the general park fund.' The contract for doing the work of construction and furnishing material for any such improvement shall be let by the said Board of Park Commissioners in such manner as shall be provided by ordinance; and such work shall be don© under the supervision and control of the Board of Park Commissioners.”

It is insisted first that the taxbills in this case were not made out and issued as provided in the Kansas City charter, article 9, section 15, of the charter, which provides: “All special taxbills provided for by this charter, shall be made out and certified by the president of the Board of Pnblic Works, or in his name by any person or persons by the Board of Public Works thereunto specially authorized by resolution in writing and recorded in books to be kept by such Board of Public Works, and signed by the president of the board.” The plaintiff in support of his case offered resolution No. 485 of the Board of Public Works in words as follows: “On motion the hoard adopted the following resolution: Whereas, it being necessary that the Board of Public Works authorize the chief clerk of the Engineer’s Department to stamp the name of the president of the Board of Public Works on all special taxbills, therefore, be it resolved by the Board of Public Works in regular session assembled, that Edward B. Silkwood is hereby authorized to stamp the name of T. M. Spofford, president, by him, to all special taxbills that may be issued in payment for public work done in Kansas City, Missouri. ’ ’ Mr. Silkwood testified that on the 3d of June; 1900, he was chief clerk of the Engineer’s. Department, and he had general supervision of the office and of apportioning taxbills and of signing taxbills. The taxbills sued upon were shown to the witness and he testified that he signed the name of T. M. Spofford, president of the Board of Public Works, to these taxbills, “by Eldward B. Silkwood.’’ And he produced the record of the receipt of the plaintiff for these taxbills in the following words: “Kansas City, Missouri, July 2,1900'. Received this day the above-mentioned taxbills amounting to the sum of $35,846.57, the same being payment in full of all claims against the city of Kansas City, Missouri, on account of the above-mentioned work. Andrew Jaicks, contractor;” that the taxbills numbers 9 and 12 sued on in this case, were included in the above receipt, numher 9 being a taxbill against the east thirty feet of lot 32 Windsor, $678.22, and number 12 being against the east thirty feet of lot 41 same addition, $625.04. The record showed further that this was a register of special taxbills issued to Andrew Jaieks, contractor, for paving, macadam paving, on Benton boulevard from Independence boulevard to Fifteenth street, by ordinance 9440', approved March 14, 1898. He testified further that a clerk in the engineer’s office, by the name of Stevens, he thought, delivered those taxbills to plaintiff, but he was not positive who did it. The handwriting, he thought, was Mr. Stevens’s, that the taxbills were made out by clerks in the office, that witness made-the apportionment of the taxes to the different lots and the clerical work of making out the bills was performed by other clerks in the office and the receipts were kept in the City Engineer’s office and the record was kept there. Thereupon the plaintiff introduced his taxbills and rested.

The contention of counsel for the defendant that these taxbills are void because the signature of the president of the Board of Public Works was signed by Mr. Silkwood, we think is untenable. The charter itself, section 15, article 9, provides the special taxbills should be made out and signed by the president of the board, or in his name by any person by the board specially authorized by resolution in writing, to do so-. The resolution of the board authorized Mr. Silkwood, the chief clerk in the Engineer’s Department, to stamp the name of the president on all special taxbills. The taxbill is certified by the Board of Public Works in the name of its president by Mr. Silkwood, and this is a substantial compliance with the charter provision. A reasonable construction of the charter, we think, does not require the president of the Board of Public Works, with his own hand, to do all the clerical work of making out these special taxbills, but when they were issued as these were, by authority of the Board of Public Works, and signed by its president by the party specially authorized by the resolution of the board, all the substantial requirements of the charter were complied with.

The decision of this court in City of Nevada to use v. Eddy, 123 Mo. l. c. 563, 564, in no sense conflicts with the conclusion herein reached. In that case the council never did determine whether the work should be done with one character of material or another as the law required, but attempted to delegate its duty to the clerk to make the assessments without the sanction of law. In this case the Common Council of the city, upon the recommendation of the Park Board, determined the material and provided the specifications, and the contract was let to the lowest bidder and the work was performed in strict conformity to the contract and accepted by the board and the city, and the mere arithmetical work of the apportionment of the total cost to the several lots abutting on the improvement, by the clerks in the City Engineer’s office, was in no sense a delegation of the authority of the board and council to those clerks.

II. As to the second proposition advanced, that the third and fourth installments of the taxbills sued on were not due and payable when the suit was commenced, to-wit, May 31, 1903: The charter provides in section 23 of article 9, “If any installment of any.such taxbills or interest thereon, be not paid when due, then all the remaining installments shall immediately become due and collectible.”

It is conceded by the defendant that in the first count of the petition, which, is the suit on the fourth installment of taxbill number 12, it is alleged, “that default had been made on the first installment by reason of which the same had become due and that the same is now due and unpaid, ’ ’ and that the fifth count of the petition on the fourth installment of taxbill numher 9 contains, tbe same allegation, bnt it is said that the fourth and eighth counts do not make this allegation, but a reference to the fourth and eighth counts will show that the plaintiff alleges that the “same are now due and unpaid. ’ ’ Under our system of practice, all that the pleader is required to do is to make a plain and concise statement of the facts, which constitute his cause of action, and it is not necessary for him to plead his evidence. By the allegation that these installments mentioned in the fourth and eighth counts were due and unpaid, the plaintiff tendered the issue of their maturity, and it was perfectly competent for him to show that by the charter provision these installments became due on account of the default in the payment of the first.

As to the proposition advanced by the learned counsel that there was no evidence tending to prove that there had been a default in the payment of the first and second installments, we are moved to say that it is no easy task to dig out exactly what issues, were tendered by the answer of the defendant outside of the assault on the constitutionality of section 31, article 10, and the attack upon ordinance 9440', because of the failure of any recommendation of the Board of Public Works indorsed thereon, but it is clear that there is no plea of payment of either of the installments in the two taxbills, and the taxbills themselves on their face show that the first and second installments were due when the suit was filed. When the plaintiff had established the genuineness of the taxbills and the receipt therefor by the plaintiff, he had established a prima-facie case under the charter and the bringing of his action was sufficient demand therefor. By this prima-facie case he had established not only the validity of the bill and the doing of the work and the furnishing of the material charged for, but that the same was still due and unpaid, and his evidence had establisted that the first and second installments were dne and unpaid, and this under the charter rendered all the remaining' installments also dne and collectible. If either of the first installments had been paid this was a matter of affirmative defense. [Wilkerson v. Farnham, 82 Mo. l. c. 678.]

We think the court properly denied the declaration of law number 2, requested by the defendant, not only upon the general principle of pleading already adverted to, but because of the frame of the answer and the issues tendered therein, which in effect amount to a plea of confession and avoidance, to-wit, that the plaintiff had done the work under and by virtue of an ordinance and contract with the city, but that the ordinance was void and the city authorities had no power to issue the taxbills and make them a lien upon defendant’s property, and not that the plaintiff was not the owner of the taxbills, nor that they were not due and unpaid.

III. We are thus brought to one of the principal, if not the most important, contention of the defendant, to-wit, that section 31 of aricle 10 of the Kansas City charter is in conflict with sections 16 and 17 of article 9 of the Constitution of this State. This section 31 has already been set out in full hereinbefore.

Section 31, supra, provides in short that the Board of Park Commissioners shall have the power to grade, pave and otherwise improve and repair any parkway or boulevard under its control and pay for the same out of funds belonging to the park district in which such work or improvement is made, and then provides that if the Board of Park Commissioners shall recommend to the Common Council that such work be done and the payment made in such taxbills, it shall be the duty of the Common Council by ordinance to order such work to be done, in which ease the Board of Public Works of the city shall apportion the cost of said work and issue special taxbills in the same manner and with the same effect as the cost of similar work is apportioned and taxbills issued in payment therefor for public improvements upon streets not under the control of the Park Board. The contention is that this section of the charter excludes all discretion in the Common Council to decide upon the necessity for the manner of constructing such boulevard improvements, whereas sections 16 and 17 of article 9, providing for the government of cities of over one hundred thousand inhabitants by a freeholders’ charter, provide that it should be a feature of such charters that they shall provide among other things for a mayor or chief magistrate and two houses of legislation.

In Albright v. Fisher, 164 Mo. 56, it was held by this court that -when the Municipal Assembly of the city of St. Louis is engaged in the performance of its legislative functions, it is beyond the power of the courts to interferé with the exercise of those functions in any manner whatever, whether by enjoining the passage of an ordinance or by mandatorily compelling the presiding officer of either house to make that an ordinance which was not an ordinance theretofore by appending his signature thereto, and this is based upon the fundamental law of the State creating the two houses of the Municipal Assembly legislative bodies. By reference to section 31 of article 10 of the Kansas City charter again it will be observed that it only authorizes the Park Board to recommend to the Common Council that a boulevard or other improvement shall be made and the payment made by issuing special tax-bills, and it then devolves upon the Council by ordinance to provide for the doing of such work and the payment for the same in taxbills as in cases where the Council itself provides for the improvement of streets not under the control of the park board. In this case it appears that the Council acquiesced in the recommendation.of the Park Board and duly passed an ordinance for the improvement of the Benton boulevard, so that the question whether the council was compelled to adopt the board’s recommendation and whether, if it had not, it could have been compelled by mandamus to do so, is not involved in this record. Reading the whole of section 31 together, it is clear that it confers no power on the Park Board to legislate, but simply gives it a power to recommend, and it is equally clear that until and unless the Municipal Assembly or Common Council passes the necessary legislation no boulevard can be improved and paid for by special taxbills, but it is equally clear in Albright v. Fisher, 164 Mo. 56, and various other decisions of this court, that a mandamus would not lie to compel them to pass an ordinance providing for the improvement of the boulevard in question, and to pay therefor in special taxbills, because such action is necessarily a legislative one. As was. said in Kansas City v. Bacon, 147 Mo. l. c. 283, it will be ample time to pass upon the question as to whether the Council are bound to follow the Park Board’s recommendation, when that question arises. But so long as the Park Board merely makes a recommendation and the Common Council exercises its unquestioned charter power to adopt the recommendation and provides for the improvement of a boulevard by a duly-enacted ordinance, we are clear that the Constitution of the State is in no manner infringed.

IV. It is next insisted, however, that the city ordinance number 9440, under which the work for which the taxbills in this case have been issued, was done, is void, because no recommendation of the Board of Public Works was indorsed thereon, and this contention is predicated upon section 2 of article 9 of the charter, which provides “that the city shall have power to cause to be graded, constructed, paved, etc., streets and alleys, sidewalks and public highways and pay therefor by issuing special taxbills,” and further “that no such resolution or ordinance shall be passed by the .Common Council except upon the recommendation of the Board of Public Works indorsed thereon,” and as it is conceded iu this case that no such recommendation from the Board of Public Works was indorsed on ordinance 9440, the ordinance is void. The question then arises whether there is such an irreconcilable conflict between section 2 of article 9 and section 31 of article 10 of the charter that both cannot stand. It is well to note that each of these provisions is found in the charter1 and each prima-facie of equal dignity. The universal rule of construction in such cases is that full effect shall be given to each if possible. And when this is done, it will be observed that section 31 of arti-. ele 10 applies solely to the improvement of roads, parkways and boulevards in the park districts under the control of the Park Board, whereas section 2 of article 9 of the charter is a general provision for the government of the Common Council as to all streets and public highways in the city. As to the parkways in the park districts the charter provides for1 the recommendation of the Board of Park Commissioners, whereas as to all streets other than those in the park district the recommendation of the Board of Public Works is required. So that it will appear that the latter is a general provision and section 31 of article 10 is a special one applicable alone to a boulevard or parkway under the supervision of the Board of Park Commissioners, to be constructed and paid for by special taxation.

In Ruschenberg v. Railroad Company, 161 Mo. 70, where there was an apparent conflict between two articles of the St. Louis charter in regard to the speed of street railways, it was said: “Where two' charter provisions, one of which is special and particular and certainly includes the matter in question, and the other general, which, if standing alone would include the same matter and thus conflict with the special act, or provision, especially when such general and special acts or provisions are- contemporaneous, the special act must be taken as intended to constitute an exception to the general act or provision and not a repeal. [Crane v. Reeder, 22 Mich. l. c. 334; State ex rel. Lutfring v. Goetze, 22 Wis. 363; Long v. Culp, 14 Kan. 414; Sutherland on Stat. Cons., sec. 217.]”

When it is considered in this case that there is absolutely no conflict whatever between section 31 of article 10 and section 2 of article 9 in regard to the power of the Common Council to cause the street or boulevard to be improved and paid for in special tax-bills, save and except that in the one case the Council has a recommendation from a Board of Park Commissioners and in the other the recommendation of the Board of Public Works, there is no sound reason why both of the provisions may not stand and the special provision as to the park boulevards, and highways be treated as an exception to the more general provisions of section 2 of article 9.

V. The fifth assignment of error is that the tax-bills are void because the finished surface of the street improvement in question as completed by the plaintiff, was not established by or according to any lawful ordinance of the city. To authorize this provision, we are referred to section 36 of article 17 of the charter, which provides that, “no ordinance establishing or re-establishing the grade of any street, avenue or alley, shall be passed by the Common Council, unless there is indorsed thereon a certificate in writing of the Board of Public Works that the grade purposed to be established or re-established by such ordinance conforms to the system of grades established by said board.” It appears from the evidence that the Benton boulevard grade was established in conformity to ordinance 8881. Prior to the passage of that ordinance, however, Benton boulevard was known as Walrond avenue from Independence avenue to Fifteenth street with the exception of four blocks from Seventh to Eleventh. The street before it was paved was g'raded in conformity to ordinance 8881; after that it was paved to- the grade established by that ordinance. This ordinance, like 9940, was passed upon the recommendation of the Board of Park Commissioners, and not that of • the Board of Public Works.

The learned counsel for the defendant says that if section 36 of article 17 applies to boulevard improvements it renders ordinance 8881 void. The ordinance under which this work was done, 9940, was an ordinance simply to pave this street; that street had been previously graded by an ordinance of the city in strict conformity with section 31 of article 101 of the charter, and that provision of the charter is not in conflict with section 36 of article 17. It would work a gross injustice .to a contractor to permit him to furnish material and labor and construct a street pavement on a street graded by the city authorities, far which grade no objection had ever been taken by any property-owner along the street, or the validity ever questioned in any manner, and then defeat his taxbill on that ground. We can And no merit whatever in this contention of the learned counsel.

VI and VII. Treating these two propositions as one, as the counsel have, it is sufficient to say that he assails the contract as void because its provisions and specifications were too vague and indefinite in the description of the materials, manner and extent of the work to admit of a competitive bidding required by the Kansas City charter. As to this objection, it is sufficient to say that the defendant in her answer admits that this work was done by the plaintiff under and pursuant to the ordinance 9440, and the standard specifieations therein referred to, which were then on file in the office of the Board of Park Commissioners at the city-hall in Kansas City. We have examined these specifications and we find nothing in them to sustain the objection of the defendant. The answer nowhere pleads wherein they are defective or misleading, or wherein they were too indefinite to admit, of eompetitve bidding, and lays no foundation for the various objections alleged in the brief of the counsel. All these matters were such as required affirmative defenses, but there was no pretense of any proof showing that the price at which the work was let was an unreasonable one, or that the work was not done strictly according to the contract. It would serve no good purpose to take up each of the objections now urged for the first time to the specifications, but it must suffice to say that we have carefully gone through each one of them, and in our opinion they furnish no defense to plaintiff’s action on the taxbills. The defendant herself testified that she saw this work going on from the time it commenced until it was completed. She knew the street was being paved, and never at any time notified the contractor that there was any defect in the proceedings and took no steps to stop him. The propositions now advanced by her counsel under this last assignment do not pertain to the unconstitutionality of the ordinance under which the work was done, or to the power of the City Council to enact that ordinance, and in this connection, the language of Judge Henry, speaking for this court in Sheehan v. Owen, 82 Mo. 464, 465, is very pertinent: “Property-holders cannot lie by and see the work progress to completion without any effort to stop it, and then defeat the contractor in his suit on the taxbills on such a plea as this. . . . The work has been done by plaintiff:. No complaint is made that it is not done according to the contract, or that plaintiff is in any manner charged with notice of alleged irregularities in the proceedings of the Council or the acts of the city officials, and while there may have been some irregularities, the ordinance was substantially complied with by the city authorities and nothing done or omitted which could possibly have affected injuriously the interest of the defendant or other property-holders, and we are not inclined to turn a plaintiff out of court who has given his time and expended his money in the improvement of their property, on mere technicalities which in no manner affect the substantial rights of the parties.” In Warren v. Barber Asphalt Paving Co., 115 Mo. l. c. 580, this court said: “In the performance of duties in which discretion is lodged with the governing authorities of a city, we think objections to the methods adopted by them, which are within such discretion, should be made before the work is done-, unless fraud or collusion is shown. It would be unjust to a contractor who has completed an improvement in full compliance with the contract awarded him by the Board of Aldermen, which is within the general powers conferred upon it, to refuse payment for the single reason that the courts may conclude that the means or methods adopted by the board were not the best or cheapest. If contracts could be vacated for such reasons, all security to contractors would he destroyed, and the cost of improvements necessarily increased, in order to insure against such contingencies. ’ ’

After a patient examination of all the propositions advanced for the reversal of this case, we are of the opinion that none of them are tenable, and that the judgment of the circuit court was for the right party, and it is accordingly affirmed.

Burgess, P. J., and Fox, J., concur.


author: FOX, J.

text:
    JAICKS v. MIDDLESEX INVESTMENT COMPANY, Appellant.
    Division Two,
    December 22, 1906.
    1. PUBLIC IMPROVEMENT: Time for Completing Work. The failure of an ordinance to fix the time for the completion of a public improvement does not invalidate the ordinance.
    2. -: Delay in Letting Contract. Where the ordinance gives the authority for doing the public work, but fixes no time within which the work is to be completed, taxbills issued in payment of the work are not void because of long delay in letting the contract for the doing of the work, if the contract was in compliance with the ordinance and the work was done and completed in compliance with the contract.
    Appeal from Jackson Circuit Court. — No». W. B. Teasclale, Judge.
    Affirmed.

      A. S. Marley, R. B. Robinson and N. N. McGluer for appellant.
    (1) The judgment for plaintiff wag against the evidence and should have been for defendant. Hernán v. Gilliam, 171 Mo. 258; Ayers v. Schmohl, 86 Mo. App. 349; Allen v. LaForce, 95 Mo. App. 324; Kneeland v. Milwaukee, 18 Wis. 411; State, etc. v. Barlow, 48 Mo. 22; Ilazet v. Pittsburg, 137 Pa. 548; Wells v. City of Milwaukee, 20 Wis. 115; Wells v. Burnham, 20 Wis. 112; Rieketson v. Milwaukee, 105 Wis. 591; Hardware Co. v. Erb, 54 Ark. 645; Dewitt v. City of Clinton, 194 111. 521; Rich Hill v. Dounan, 82 Mo. 386; Cogshall v. Des Moines, 78 Iowa 235;- Highland Co. v. Rhodes, 26 Ohio St. 411; Grant v. Barber, 135 Cal. 188; Railroad v. Effingham, 172 111. 607; Otis v. Chicago, 161 111. 199'; Cass v. People, 166 111. 126; People v. Hereford, 167 111. 226; Stat ex rel v. St. Louis, 161 Mo. 382; Foss v. Chicago, 56 111. 354; Schoenberg v. Field, 68 S:. W. 945; Calif. Imp. Co. v. Reynolds, 123 Cal. 88; Bolton v. Dollern, 105 Cal. 244; Fairbanks, M. & Co. v. North Bend, 94 N. W. 537; Inge v. Public Works, 135 Ala.' 187. (2) The contract and specifications and ordinance 9440 are null and void for the reason given in the foregoing authorities.

      T. B. Buchner for respondent.
    (1) Appellant havin had personal knowledge of the work being done, of the passage of the ordinance, having stood still until the contractor had expended his money and finished his work in direct accordance with his contract, the appellant is now estopped to plead any of the irregularities relied upon and raised by them in this case. The record shows a perfect compliance with all the charter requirements, and that the proceedings from the beginning to the end are even void of irregularities. But supposing or admitting some of the objections complained of are irregular, they are not such as will invalidate the taxbill sued on. It is only such defects as affect the substantial rights of the property-owner which will render the tax bills void. Shehan v. Owen, 82 Mo. 464; Boss v. Stackhouse, 114 Ind. 200’; Cole v. Strainka, 105 Mo. 309; Morse v. City of West-port, 110 Mo. 502; Johnson v. Duer, 115 Mo. 381; Gibson v. Owen, 115 Mo. 269; Warren v. Barber Paving Co., 115 Mo.-580; Herman on Estoppel, sec. 1221; Barber Pav. Co. v. Edgerton, 125 Ind. 455; Clements v. Lee, 114 Ind. 399; Pretzinger v. Harness, 114 Ind. 498. (2) On the question of estoppel, see, also: Planet Property Co. v. Railroad, 115 Mo. 613; Hellencamp v. City of Lafayette, 30 Ind. 192; Palmer v. Stumpf, 26 Ind. 329; Lafayette v. Fowler, 34 Ind. 146; Gibson v. Owen, 115 Mo. 258; Ritchie v. South Topeka, 38 Kan. 374; Warren v. Barber Asphalt Paving Co., 115 Mo. 580; Traphagen v. Mayor, 29 N. J. Eq. 209; Elliott on Roads and Streets (2 Ed.), sec. 590; 'Warren v. Barber Asphalt Pav. Co., 115 Mo. 580; Gibson v. Owens, 115 Mo. 567; Heman v. Ring, 85 Mo. Ap.p. 231; Barber Asphalt Pav. Co, v. Hezel, 76 Mo. App. 135, 155 Mo, 391.
   FOX, J.

This cause reaches this court by appeal on the part of the defendant from a judgment of the Jackson Circuit Court at Kansas City, Missouri. This proceeding is predicated upon certain special taxbills of the same issue and for the same improvement as those involved in the case of this same respondent against Martha G. Merrill, determined at the present sitting of this court in an opinion by Judge Gantt, and reported at page 91 of this volume. While in that case some of the questions determined were not presented by learned counsel for appellant in the case at bar, y.et it does cover, with perhaps the exception of one point, the main propositions insisted upon in the case before us. In the Merrill case the proposition was presented that section 31 of article 10 of the Kansas City charter was in conflict with sections 16 and 17 of article 9 of the Constitution of this State. That question was ably presented by counsel for appellant and the opinion responding to the contention of the appellant upon that question exhaustively treats the subject and finally reaches a conclusion adverse to the appellant. Another question presented in the Merrill case was upon the contention that it was not made manifest by the pleadings or the proof that the amounts designated in the taxbills as contained in some of the counts in the petition, were due and payable at the commencement of the action. This question was also decided adversely to the contention of the appellant.

The proposition that the taxbills upon which a recovery is sought were invalid for the reason that there was no authority shown for Silkwood to sign the name of the president of the hoard to> such taxbills, was involved in both cases, the Merrill case and the ease now under consideration. That question was thoroughly treated in the opinion by Judge G-antt in the Merrill case and it must be held decisive of the same question presented in this case.

Complaint is made in this case as to the vagueness and indefiniteness of the plans and specifications. A similar complaint was made in the Merrill case.. "We have carefully read in detail the specifications for this improvement and we deem it sufficient in respect to this complaint to simply repeat what was said by this court upon the same subject in the Merrill case. Judge G-antt, in discussing the errors assigned in that case respecting the specifications, said: “It would serve no good purpose to take up each of the objections now urged for the first time to the specifications, but it must suffice to say that we have carefully gone through each one of them, and, in our opinion, they furnish no' defense to plaintiff’s action on the taxbills.”

There is, however, one assignment of error by the appellant which was not presented by the appellant in the Merrill ease, nor is it discussed or determined by the opinion in that case; that is the long delay in letting the contract for the improvement after the passage of the ordinance which gave the authority for the improvement, and the letting of the contract. It must be conceded that the contract for making the improvement for which the taxbills involved in this proceeding were issued, was not made for some length of time after the passage of the ordinance. There is something said in the briefs of counsel for both parties in this proceeding as to a ruling of the Federal court upon what is known as “the front-foot-rule,” and it is contended by respondent that this was partly the cause of this delay; however, it is immaterial upon the disclosures of the record in this cause as to what was really the cause of the delay in letting the contract after the passage of the ordinance. The ordinance authorized the improvement to be made and gave full authority for letting the contract for the doing of the work respecting such improvement, and we are unwilling to say that the contractor in this ease, who entered into the contract and proceeded to do the work in compliance with it, should be defeated in the recovery of his claim for the work performed under the contract, which was done in compliance with it and the work completed within the time provided for by the contract, by reason of any delay or neglect on the part of the governing board, who had .authority by virtue of the ordinance to let the contract. In support of the contention that this delay in letting ;the contract after the passage of the ordinance is sufficient to defeat a recovery in this action, our attention is directed to the cases of Ayers v. Schmohl, 86 Mo. App. 349; Allen v. La Force, 95 Mo. App. 324, and Heman v. Gilliam, 171 Mo. 258. An examination of those cases will'demonstrate that they have nO' application to the proposition now in hand. Here we have an ordinance which confers a power to make certain improvements and to let by contract the work for making such improvements; no time is designated in such ordinance as to when such improvement shall be completed. It is now the settled law of this State that the failure of an ordinance to fix the time for the completion of the work does not invalidate such ordinance, and it must be kept in mind that the proposition in this case is not that the work was not completed within the time designated by the contract, but the complaint is directed at the delay in exercising the power to let the contract under the ordinance.

An examination of the cases in this State will demonstrate that the courts in discussing the question of time did not have in mind the time in which the power conferred should be exercised, but were treating of the proposition as to whether it was essential for the ordinance to prescribe a time limit within which the contract entered into by virtue of the power conferred by the ordinance should be performed, and other questions not applicable to the time in which the contract must be ■let after the passage of the ordinance, but in respect to the time that the work must be completed after the contract for the performance of the work has been entered into.

It was but common knowledge that after the enactment of the ordinance providing for the street improvement designated in such ordinance, public work of this character was at a standstill by reason' of the unsettled condition of the law upon what was commonly known as “the front-foot rule;” one of the Federal courts holding that such rule was unlawful, and it was some length of time before that question was settled. This doubtless in a large measure was the cause of the delay in letting the contract for the improvement provided for by the ordinance. We are of the opinion that such delay under the facts disclosed was insufficient to in any way affect either the validity of the ordinance, the power to contract in pursuance of it or the right of the contractor to perform the work in compliance with his contract and recover the amount designated in the special taxbills issued in consideration of the work performed under the contract.

The record before us discloses many other technical objections to the maintenance of this proceeding. It is sufficient to say of them that they have had our careful attention and in our opinion they fall far short of furnishing any valid or substantial defense to the action of the plaintiff on the taxbills in suit.

We have read the disclosures, of the record in detail and failing to find any substantial error which would warrant the reversal of the judgment, our conelusion is that it should be affirmed, and it is so ordered.

All concur.