author: WOODSON, J.

text:
    H. P. REIGART, Appellant, v. MANUFACTURERS COAL AND COKE COMPANY.
    In Banc,
    March 9, 1909.
    I. SALE OF GOODS: At Common Law: Statute of Frauds: Contracts Pieced Out Aliunde. At common law contracts for the sale and delivery of large amounts of goods, extending over a series of years, were not required to be in writing and if the contract was incomplete on its face, oral evidence was admissible to supply the defects, because the oral contract being good without being reduced to writing, and the presumption that all the agreement was in writing being negatived on its face, no principle of law was violated by admitting parol evidence to piece out the omitted parts. But in order to prevent fraud and perjury all that has been changed by the Statute of Frauds, which requires that all such contracts shall be in writing. And the statute does not mean a part of the contract, but all of the contract.

      2. -: Contract: Incomplete on Face: No Consideration: Pieced Out Aliunde: Statute of Frauds. Plaintiff sues for one million dollars damages for breach of a written contract, made November 20, 1902, by which defendant agreed to furnish and plaintiff to receive such coal as plaintiff “shall make requisition for, not exceeding 2,500 tons per working day,” at $1.75 per ton, the agreement to take effect January 1, 1903, - and continue until December 31, 1907. No consideration was expressed to support the contract, and plaintiff contends that he should have been permitted to show that independent of this contract there was an oral agreement that he should go out and work up a market for the coal, and that such understanding was the inducing consideration for the written contract, and that he performed that oral' agreement. Held, first, that such oral evidence was not competent to piece out the written contract; second, that the oral agreement was void under the Statute of Frauds; third, the agreement was not to-be performed within one year and was not in writing, and the written contract was not supported by any valid consideration or earnest money; and, fourth, the contract showing on its face that it was not to be performed within one year, the part performance did not avoid the Statute of Frauds.
    3. -: -: -: -: -: Distinctions. Most of the confusion found in the early cases interpreting the Statute of Frauds is attributable to their failure to observe the distinctions that all contracts embraced within section 3418, Revised Statutes 1899, and all of them governed by the last clause of section 3419, must be in writing, while all of those embraced within the first three clauses of section 3419 may or may not be in writing. If, however, they are reduced to writing, and the writing is complete on its face, then parol evidence is not admissible to alter or add to them; but if the writing is incomplete, and shows upon its face that all the terms of the contract are not embraced in the writing, then parol evidence is admissible to piece out the omitted parts.
    Appeal from Adair Circuit Court. — Hon. Nat. M. Shelton, Judge.
    Affirmed.

      John Maynard Harlan and Higbee & Mills for appellant; Frank Hagerman of counsel.
    (1) The court erred in refusing to admit parol evidence to show the conditions and circumstances surrounding the parties prior to and at the time the contract was executed, for the purpose of showing what the parties intended by the contract. 17 Cyc. 673; Laclede Cons. Co. v. Moss Tie Co., 185 Mo. 25; Liebke v. Knapp, 79 Mo. 22; Minn. Lumber Co. v. Coal Co., 160 111. 85; Fire Ins. Ass’n v. Wickham, 141 U. S. 564; North American Trans., etc., Co. v. Samuels, 146 Fed. (C. C. A.) 48. (2) The court erred in refusing to admit parol evidence to show what was the consideration moving from Reigart, for: (a) The admission of such evidence to show the consideration of a written contract is not a violation, of the Statute of.Frauds. 6 Am. and Eng. Ency. Law (2 Ed.), 758; 2 Street, Foundations of Legal Liability, 179; Wain v. Warlters, 5 East 10, 2 Smith’s Lead. Cas. 243; Egerton v. Mathews, 6 East 307; Packard v. Richardson, 17 Mass. 121; Hayes v. Jackson, 159 Mass. 451; Gillighan v. Boardman, 29 Me. 79; Sage v. Wilcox, 6 Conn. 81; Reed v. Evans, 17 Ohio 128; Miller v. Irvine, 1 Dev. & B. Law (N. C.) 103; Ashford v. Robinson, 8 Ire. Law (N. C.) 114. This is true in Missouri. Browne, Stat. of Frauds, secs. 381, 381a; Bean v. Yalle, 2 Mo. 126; Halsa v. Halsa, 8 Mo. 303; Ivory v. Murphy, 36 Mo. 534; Smith v. Shell, 82 Mo. 215; Rucker v. Harrington, 52 Mo. App. 481; Kelly v. Thuey, 143 Mo. 422. (b) The admission of such evidence to show the consideration of a written contract is not a violation of the parol evidence rule. 6 Am. and Eng. Ency. Law (2 Ed.), 765; 1 Mechem on Sales, sec. 422; 4 Wigmore on Evidence, sec. 2430; Jackson v. Railroad, 54 Mo. App. 636; Davis v. Gann, 63 Mo. App. 425; Harrington v. Railroad, 60 Mo. App. 223; O ’Day v. Conn, 131 Mo. 321; .Liebke v. Knapp, 79 Mo. 22; Edwards v. Smith, 63 Mo. 119; Bartlett v. Matson, 1 Mo. App. 151; Cosgriff v. Dewey, 21 App. Div. 129, 47 N. Y. Supp. 255; Davenport v. Mason, 15 Mass. 84; Bowser v. Cravener, 56 Pa. St. 132; Cummings v. Dennett, 26 Me. 397; Baltes Land, etc., Co. v. Sutton, 32 Ind. App. 14; Ryan v. Hamilton, 205 111. 191; Sanders Brick Co. v. Columbia, etc., Co., 86 Mo. App. 169; Ayer v. Bell Mfg. Co., 147 Mass. 46; Bonney v. Morrill, 57 Me. 368; Lafitte v. Shawcross, 12 Fed. 519. (3) The court stated as the “crucial” point in the case “that the contract on-its face is utterly devoid of mutuality” and held that, since mutuality was lacking, “it was therefore unilateral,” and being unilateral, it was therefore unenforceable. The court here fails to recognize a legal fact which is too well settled to admit of controversy, i. e., that a unilateral contract is as enforceable as any other, provided it is supported by a valuable consideration. Mutuality exists where an outstanding enforceable promise is given by one party as the consideration for a concurrent, outstanding and enforceable promise given by the other. In such a case the contract is bilateral, because each party has yet to perform his obligation. A unilateral contract exists where, by the passing of an executed consideration from one party to the other, an obligation has been created to be performed by that other. The contract in suit was unilateral, and therefore the question of mutuality does not arise. Mutuality is only one phase of consideration. If there is any other consideration the presence or absence of mutuality is immaterial. Anson on Contracts, *12; 1 Parsons on Contracts, sec. 450; Wald’s Pollock on Contracts, 175, note; 15 C. C. A. 543, note; Laclede Cons. Co. v. Tudor Iron Works, 169 Mo. 137; W. G. Taylor Co. v. Bannerman, 120 Wis. 187; Mueller v. Bethesda M. S. Co., 88 Mich. 390; Emerson v. Packing Co., 100 N. W. 365; Am. Pub., etc., Co. v. Walker, 87 Mo. App. 503; Grove v. Hodges, 55 Pa. St. 504; Justice v. Lang, 42 N. Y. 493; Plumb v. Campbell, 129 111. 101; Cherry v. Smith, 3 Humph. (Tenn.) 19; Railroad v. Witham, L. R. 9 C. P. 16, 43. L. J. C. P. 1, 29 L. T. Rep. (N. S.) 471. (4) The consideration moving from plaintiff to defendant company which vitalized the contract in suit consisted in the services rendered in pursuance of his previous undertaking, entered upon at defendant company’s request, to use his best efforts to make a market for its coal. (5) The consideration offered to be proved was sufficient to support the undertakings of defendant company. Liebke v. Knapp, 79 Mo. 22; Wilson v. Clonbrock, etc., Co., 105 Fed. 846; McCall v. Icks, 107 Wis. 232; Kaufman Bros, v. Mfg. Co., 78 la. 679'. (6) Consideration in the inception of a contract is not essential; if a consideration is later supplied, that is sufficient. 9'Cyc. 329; Pomeroy, Specific Performance, sec. 169; 7 Am. and Eng. Ency. Law (2 Ed.), 115; Hammon on Contracts, p. 683; 15 C. C. A. 547, note; L’Amoreaux v. Gould, 7 N. Y. 349; German v. Gilbert, 83 Mo. App. 411; Goward v. Waters, 98 Mass. 596; Muscatine Water Co. v. Muscatine Lumber Co., 85 la. 112; Willits v. Ins. Co., 45 N. Y. 45; Plumb v. Campbell, 129 111. 101; Sheffield Furnace Co. v. Hull Coal, Etc., Co., 101 Ala. 446; Laclede Cons. Co. v. Tudor Iron Works, 169 Mo. 137; Morse v. Bellows, 7. N. H. 549'. (7) After plaintiff at defendant company’s request had rendered valuable services in securing a market for its coal, defendant company could not legally* refuse to furnish plaintiff coal up to the amount agreed upon in the contract between them. Martin v. Meles, 179 Mass. 114; Campbell v. Lambert & Co., 36 La. Ann. 35; Fontaine', v. Baxley, etc., Co., 90 Ga. 416; Storm v. United States, 94 U. S. 76; Park Bros. v. Mfg. Co., 49 Fed. 618; Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77. (8) This agreement between plaintiff and defendant company might, in its inception, be considered either as a contingent contract or as a “mere continuing offer. ” It is immaterial which view of the contract is taken, for, under either theory, so soon as Reigart had supplied a consideration by rendering valuable services, the contract between him and defendant company became absolute and unconditional. 21 Am. and Eng. Ency. Law (2 Ed.), 924; German v. Gilbert, 83 Mo. App. 411; Wilson v. Clonbrock, etc., Co., 105 Fed. 846 ; Ide v. Leiser, 10 Mont. 5.

      O. M. Spencer, Campbell & Ellison, Willard P. Hall and E. W. Hinton for respondent.
    (1) Tbe contract sued on, upon its face, binds only defendant, is without certain consideration moving to defendant, and at the time of its execution was unenforceable by either party to it. (2) The alleged oral contract was within the Statute of Frauds and for that reason evidence of it was properly excluded. Johnson v. Reading, 36 Mo. App. 306; Cochran v. .Whiteside, 34 Mo. 418; Taylor v. VonSchroeder, 107 Mo. 206; Biest v. Shoe Co., 97 Mo. App. 137; Wainscott v. Kellogg, 84 Mo. App. 621. Performance as used in the statute is construed to mean complete and full performance, according to the terms of the agreement. Giraud v. Richmond, 2 C. B. A. 35; Parks v. Francis, 50 Vt. 626; McElroy v. Ludlin, 32 N. J. Eq. 828; Tatterson v. Mfg. Co., 106 Mass. 56; Tiernan v. Granger, 65 111. 351. The written memorandum must be complete in itself, without parol proof, in order to satisfy the Statute of Frauds. If any of the essential terms of the contract be omitted from the written memorandum, the omission is fatal, and the contract cannot be enforced. Biest v. Shoe Co., 70 S. W. 1081; Cunningham v. Roush, 157 Mo. 336; Bruckman v. Dry Goods Co., 91 Mo. App. 454; Mine, etc., v. White, 106 Mo. App. 222; Rucker v. Herrington, 52 Mo. App. 481; Van Stone v. Hopkins, 49 Mo. App. 386; Cunningham v. Williams, 43 Mo. App. 629; Christensen v. Wooley, 41. Mo. App. 53; Smith v. Shell, 82 Mo. 215; Kelly v. Thuey, 143 Mo. 422. Plaintiff’s counsel concede this rule, but contend that there is one exception to it, to-wit, the consideration upon which is based the promise .sought to be enforced, and that said consideration need not be stated in the written memorandum. In ■support of their contention they quote from the opinions of this court in Ivory v. Murphy, 36 Mo. 534, and Smith v. Schell, 82 Mo. 218. Counsel admit, however, "that the rule, and not the exception, so far applies to the case of a sale as to require the price to be stated in the memorandum. Said admission only concedes the law as it is firmly established in this State, and as it exists elsewhere. In every case of sale, within the Statute of Frauds, the memorandum must state the price, or else the consequences will be fatal, and the contract be unenforceable by either party to it. Mine, etc., Co. v. "White, 106 Mo. App. 222; Ringer v. Holtzclaw, 112 Mo. 519; Boyd v. Paul, 125 Mo. 9; Grafton v. Cummings, 99 U. S. 100; 2 Kent (14 Ed.), 511; Browne on Statute of Frauds (5 Ed.), secs. 381-381a; Peycke v. Ahrens, 98 Mo. App. 456; Darnell v. Laff-erty, 113 Mo. App. 282; Reid v. Glass Co., 85 Fed. 110; Arnold v. Garth, 106 Fed. 13. There was no such performance by plaintiff of the alleged oral contract as to take it out of the statute. 1. Because of the nature of such performance. 2. Because part performance of a contract within the one-year provision of the statute does not take it out of the statute. Williams v. Morris, 95 U. S. 456; Nowack v. Berger, 133 Mo. 24; Farrar v. Pa'tton, 20 Mo. 81; Dickerson v. Chrisman, 28 Mo. 134; Townsend v. Hawkins, 45 Mo. 286. (3) The alleged oral contract was not admissible in evidence because the written agreement was complete upon its face and said alleged oral contract contradicted the terms of the written agreement. Rollins v. Claybrook, 22 Mo. 405; Broughton v. Null, 56 Mo. App. 234; Standard Fireproofing Co. v. St. Louis, Etc., Co., 177 Mo. 559. (4) The order by plaintiff upon defendant to furnish 600 tons of coal per working day till “next spring” did not make the contract binding upon defendant. Cold Blast Transp. Co. v. Bolt Co., 114 Fed. 77; Railroad v. Dane, 43 N. Y. 240; Thayer v. Bnrchard, 99 Mass. 508; Dennis v. Slyfield, 117 Fed. 474. . ,
   WOODSON, J.

This suit originated in the circuit court of Adair county, and was instituted by plaintiff against defendant to recover approximately $1,000,000 for the breach of the contract hereinafter-set forth. The trial resulted in a verdict and judgment in favor of the defendant, and, after taking the-proper preliminary steps, he appealed the cause to» this court.

The cause was assigned to Division No. One, and was there argued and submitted for adjudication, which resulted in a divided court, and in pursuance to the mandate of the Constitution the cause was transferred to Court in Banc.

The contract sued upon is in words and figures as follows:

“This agreement made this twentieth day of November A. D. 1902, between the Manufacturers Coal & Coke Company, party of the first part, and H. P. Reigart of St. Joseph, Missouri, party of the second part, Witnesseth:
“The party of the first part shall furnish and the-party of the second part shall receive such coal as the party of the second part shall make requisition for, but not exceeding twenty-five hundred tons per working day. The coal shall be furnished from the mines-, of the party of the first part in Missouri and Iowa, and shall be free from stone, slate, dirt, bone, sulphur- and black jack, and shall be screened over bar or perforated shaker screens to remove slack and nut coal.
“The coal shall be subject to the inspection and’, acceptance of the party of the second part at the mines; and subject to the weight of the Western Railway-Weighing Association at the mines, the actual tare* weight of cars to be ascertained by weighing the cars¿ empty before they are loaded.
“The party of the second part shall pay and the party-.of the first part shall receive as full compensation for said coal furnished hereunder one dollar and seventy-five cents ($1.75) per net ton F. O. B. cars St. Joseph, Missouri; and the same price shall apply on coal delivered F. O. B. cars to connecting lines at any junction point on the Iowa and St. Louis Bailway between Mystic, Iowa, and Macon, Missouri, both in-elusive, less the prevailing rate per ton on coal from said junction point to St. Joseph, Missouri.
“Payments for coal shall be made by the party of the second part on or about the twentieth of each month for coal furnished during the previous month.-
“The party of the first part shall make shipments of coal in- such quantity and manner as the party of the second part shall from time to time direct, but the party of the first part shall not be held liable for damages on account of failure to make shipments when such failure shall be due to strikes, fires, floods, mine accidents or other causes wholly beyond the control of the party of the first part.
“This agreement shall take effect January first, Nineteen Hundred and Three (1903), and shall continue in effect until December thirty-first, Nineteen Hundred and Seven (1907), and shall bind and inure -to the benefits of the successors and assigns of the party of the first part, and the heirs, administrators ;and assigns of the party of the second part as fully as if the said successors, assigns, heirs and administrators had been specifically mentioned in each instance.
“In witness whereof, the parties hereto have executed this agreement, in duplicate on the day and year first above written.
“ Manufacturers Coal and Coke Company,
By H. F. Bedding, President.
H. P. Beigart.”
“Witnesses: W. H. Marshall, C. H. Varnon.

The petition, in addition to the ordinary allegations of the breach of the contract, stated' in substance that prior to and independent of the contract mentioned in the petition there was an oral contract by and between plaintiff and defendant to the effect that the former would go out and endeavor to sell this coal and make a market therefor, and that said contract and understanding on his part with the coal company was a moving motive or inducing cause or consideration which induced the coal company to enter into the contract sued upon, and he went out to make a market for the company’s coal, and that in pursuance to same he did so and sent to it the orders mentioned in the petition as the result of his efforts.

The answer was a general denial, and, among other things, there was a plea of the Statute of Frauds, and that the contract sued on was unilateral and not binding on defendant.

It will be unnecessary to set out the pleadings and evidence in full, as the questions presented for determination are questions of law which will sufficiently appear in the opinion for a proper understanding of the legal propositions involved.

I. “It is conceded by counsel for appellant that the contract at its inception was unilateral — a mere option, given to Reigart, and that no. consideration for the option is expressed therein.”

In order to escape the effects of that concession, they contend that the consideration passing from appellant to respondent and supporting the option may rest in parol and may be shown aliunde of the option, or the written contract.

In pursuance to that contention, counsel for appellant offered to prove by parol evidence that, independent of the option sued on, there was an oral contract entered into between them to the effect that he would go out and endeavor to make a market for and sell the coal of respondent, and that the option given by the latter to appellant, and the undertaking on his part to create a market and sell the coal, was a moving motive or inducing cause or consideration which induced the coal company to enter into the so-called contract sued on, and that when he went out and sold the coal in pursuance to the option and his undertaking to create a market for the coal, that changed the contract from a unilateral or an optional contract, without a consideration to support it, into a bilateral contract based upon a valuable consideration, and, when broken, the company was liable for the damages which flowed from that breach.

While, upon the other hand, the respondent contends that the option sued on is unilateral and is therefore nudum pactum, because appellant does not thereby bind himself to purchase any of the coal mentioned in the option, nor is there any consideration to support the option expressed therein. The respondent also> contends that parol evidence is not admissible to show such a consideration, for the reason that, if such consideration existed in fact, it was one of the terms of the contract and should have been included in the terms of the written memorandum thereof, otherwise it is void under the Statute of Frauds.

These various contentions of the appellant and respondent present the main legal proposition we are called upon to decide.

Sections 3418 and 3419, Revised Statutes 1899, which are two of the sections of the statutes commonly called the “Statute of Frauds,” read as follows:

“Sec. 3418. No action shall be brought .... to charge any person .... upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith,' or some person by him thereto lawfully authorized,” etc.
“Sec. 3419. No contract for the sale of goods, wares and merchandise for the price of thirty dollars or upwards, shall be allowed to be good, unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of the bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized.”

In order to fully understand these statutes, we should bear in mind that at common law contracts of this character were not required to be in writing; and that, if the contract was incomplete on its face, oral evidence was admissible to supply the defects, because the oral contract was good without being reduced to writing, and the presumption that all the agreement was in writing being negatived-on its face, no principle of law was violated by admitting the parol evidence to piece out the omitted parts. [Ringer v. Holtzclaw, 112 Mo. l. c. 523; Standard Fireproofing Co. v. St. Louis Fireproofing Co., 177 Mo. l. c. 571.]

In order to prevent fraud and perjury, which were so prevalent under the common law, these statutes were enacted, requiring all such contracts to be reduced to writing, etc.

This' contract bears date November 20th, 1903; and the last clause thereof, in express terms, provides that “this agreement shall take effect January first, Nineteen Hundred and Three (1903), and shall continue in effect until December thirty-first, Nineteen Hundred and Seven (1907).”

According to this provision of the contract it had five years to run after it took effect, which brings it within not only the spirit but the very letter of said section 3418, which provides that “no action shall be brought to charge any person .... upon any agreement that is not to be performed within one year from the making thereof, unless the agreement upon which the action shall be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith.”

This section says that no action shall be maintained without the contract is reduced to writing — not a part of the contract but the contract shall be reduced to writing before the action can be maintained. The word “contract” as used in the statute includes all of the terms and provisions of the agreement entered into between the parties, and not a part of them only, but all of them. If that statute had provided, or if it was the meaning thereof, that only a part of the terms, of the contract should be reduced to writing and not all of them, then the statute would be without force or meaning, for the reason that at common law the same thing could have been done, that is, as before stated, at common law if the .contract was incomplete on its face, oral evidence was admissible to supply the omissions.

The statute was not declaratory of the common law, but was- highly remedial, intending to prevent fraud and perjury by changing the common law in that regard, by requiring that all of the terms of the contract should be reduced to writing before an action could be maintained thereon. And what has been here said is reinforced and made clearer by reverting to the common law, which conclusively presumes that the written contract is the receptacle fpr and contains all the terms of the agreement, and which prevent the introduction of parol evidence in any manner to change, add to or take from the written contract, except where the written contract itself showed upon its face that parts of it were omitted therefrom. [Koons v. St. Louis Car Co., 203 Mo. l. c. 255; Standard Fireproofing Co. v. St. Louis Fireproofing Co., 177 Mo. l. c. 571; Ringer v. Holtzclaw, 112 Mo. l. c. 523.]

The Legislature, by this statute, intended to wipe out that exception and prevent an action from being maintained, even though tbe omission appeared on tbe face of tbe contract. That was its very object and purpose and none other.

If what I have stated is correct then it necessarily follows that tbe contract price and tbe consideration of tbe contract must be stated in tbe written contract along with all tbe other terms thereof, and it cannot be shown by parol evidence.

I am fully aware and not unmindful of tbe fact that some of tbe cases cited by tbe learned counsel for appellant bold that under tbe Statute of Frauds it was not necessary that tbe consideration of tbe agreement should be stated in writing; nor am I unmindful that some of tbe opinions so bolding were written by some of tbe greatest jurists and brightest minds that ever adorned this bench. Among those cases are tbe following: Bean v. Valle, 2 Mo. 126, written by Chief Justice McGirk; Halsa v. Halsa, 8 Mo. 303, written by Judge Scott; Ivory v. Murphy, 36 Mo. 534, written by Wagner, J. The same ruling was bad in the case of O’Neil v. Crain, 67 Mo. 250, written by Judge Norton, and, to the same effect, Ellis v. Bray, 79 Mo. 227, written by Judge Ray.

Tbe O’Neil-Crain case was a suit for damages for a breach of tbe following contract: “Brookfield, September 10th, 1874. William O’Neil, you will please get us 360 bogs instead of 250, if you can, so as to make three car loads at your place. Be careful about tbe weights. I.I. Crain Bro. & Co.” It was contended by tbe defendants that tbe contract was void because it came within tbe provisions of the Statute of Frauds. In discussing that question Norton, J., said: “It is also argued that the written memorandum of the contract offered in evidence was not sufficient to take tbe case from tbe operation of tbe Statute of Frauds, and that parol evidence could not be received to supply any of its terms. Parol evidence is clearly inadmissible to contradict, alter, or vary a written contract, but when a written memorandum of a contract does not purport to be a complete expression of tbe entire contract, or a part of it only is reduced to writing, the-matter .thus omitted may be supplied by parol evidence. [Rollins v. Claybrook, 22 Mo. 407; Moss v. Green, 41 Mo. 389; Briggs v. Munchon, 56 Mo. 467; 1 Green. Ev., sec. 284a.] Tbe memorandum is silent as to tbe price, to be paid, and does not purport to' express'tbe entire contract, and tbe evidence offered to. explain it in tbis particular, being in no wise contradictory of the writing, was, under tbe authorities cited, properly admitted.”

Notwithstanding tbe great ability and learning of all of these distinguished jurists, I respectfully submit that they, and each of them, either overlooked tbe provision of tbe statute before quoted, and tbe evils that existed at common law, which tbe statute was intended to remedy, and applied tbe common law rule instead of tbe statute; or, if tbe statute was considered in those cases, then they so interpreted it as to make it declaratory of tbe common law in its fullest sense without changing a word, dotting an “i” or crossing a “ t, ” and thereby left existing in full force tbe very evils tbe statutes intended to abolish.

Tbe foregoing cases have been many times overruled by tbe later adjudications of tbis court — some of them in express terms and all of them by necessary implication; among those so overruling them are tbe following:

Tbe case of Ringer v. Holtzclaw, supra, was a suit to enforce specific performance of an alleged contract for tbe sale and purchase of lots 7, 8, 9 and 10 in block 184, in tbe town of Marceline, Missouri. Plaintiff alleged that tbe defendant bad paid twenty-five dollars on tbe trade and owed $975, and that a memorandum of tbe agreement was reduced to writing and signed by defendant. .The defense was a general denial, Statute of Frauds, and a verbal contract, where defendant averred he had an option on said lots to be taken or declined on April 2, 1888; that if he accepted them plaintiff was to furnish a satisfactory abstract and deliver a good and sufficient warranty deed, conveying a perfect title thereto; that plaintiff did not furnish a perfect abstract, and refused to make the deed. On the trial the following memorandum of the contract was read in evidence: ■“Marceline, Mo., March 16, 1888. It is agreed by and between E. M. Randolph, R. M. Ringer and T. A. Smedley, that each of them have the liberty to sell, lots 7, 8, 9, 10, block 184, and whichever sells to have all the commission, and each party has the privilege to sell •each lot at $250, which shall satisfy Mr. Ringer in full for said lots, and if sale is not made within sixteen days from this date Mr. Holtzclaw to pay to Mr. Ringer the original price agreed upon between them. ’ ’ The defendant never took possession of the lots. Plaintiff never offered defendant a deed to the lots, and testified that the agreement with defendant was verbal, and by it he was to assign defendant four several contracts for said lots. In discussing this question, Gantt, P. J., said:

“The circuit court committed no error in refusing the specific performance. The case comes within the letter and spirit of the Statute of Frauds. The memorandum is wholly insufficient as evidence of a contract. It does not purport to be a memorandum of a contract. It merely refers in a vague and indistinct way to an agreement made about a price at another time. Whether that other agreement would be good must depend on whether it met the requirements of the law. When it appeared to be entirely verbal, of course it had no effect in law. All the authorities are agreed that the memorandum must state the contract with reasonable certainty, so that its essential terms can be ascertained from the writing itself without a resort to parol evidence. [Browne on Statute of Frauds, sec. 384; Benjamin on Sales (Bennett’s Ed.), secs. 249, 250; Smith v. Shell, 82 Mo. 215; North & Co. v. Mendel, 73 Ga. 400; Fry v. Platt, 32 Kan. 62; Williams v. Robinson, 73 Me. 186; Lee v. Hills, 66 Ind. 474; Banks v. Mfg. Co., 20 Fed. 667; Williams v. Morris, 95 U. S. 444; Grafton v. Cummings, 99 U. S. 100.]
“The appellant invokes the doctrine that, where a contract upon its face is incomplete, resort may be had to parol evidence to supply the omitted stipulations. But, to admit the application of that doctrine in this case, we must go to the extent of permitting plaintiff to establish not a part but the whole contract by parol, and thus deny the authority of the statute, and in effect permit parties to agree that the Statute of Frauds shall not affect their contracts, and then invoke the aid of the courts of the State to enforce agreements made in defiance of its laws.
‘‘ The rule relied upon by appellant has long existed at common law in cases unaffected by the Statute of Frauds. At common law contemporaneous, parol evidence was not permitted to change the written contract, because the law conclusively presumed that prior negotiations and agreements were merged in the writing, and that it contained the entire agreement.
“By the Statute of Frauds, on the contrary, the parol evidence is rejected because it is the policy of the law to regard it as untrustworthy. At common law, if the contract was incomplete on its face, oral evidence was admissible to supply'the defects, because the oral contract was good without the writing, and, the presumption that all the agreement was in the writing being negatived on its face, no principle of law was violated in admitting the parol evidence. But under the Statute of Frauds, if the subject-matter of the contract is within the statute, and the contract or memorandum is deficient in some one or more of those essentials required by the statute, parol evidence cannot be received to supply the defects, for this were to do the very thing prohibited by the statute. This must be obvious upon the slightest reflection. This distinction was made by Lowrie, O. J., in Musselman v. Stoner, 31 Pa. St. 265. (Glass v. Hulbert, 102 Mass. 24; Moulding v. Prussing, 70 Ill. 151; Osborn v. Phelps, 19 Conn. 63; 1 Story on Equity Jurisprudence, sec. 770a; 1 Greenleaf on Evidence (14 Ed.), sec. 86); but was overlooked in O’Neil v. Crain, 67 Mo. 250, and Lash v. Parlin, 76 Mo. 391. We freely concur in the statement of the rule made in those cases when applied to a case not falling within the statute, but as to a case the subject-matter of which is within the statute, we think such a rule must inevitably become subversive of a plain statute, and it is our province to uphold and enforce the statutes, not to nullify them.
“Nor have we any inclination to add another exception to the statute, since, as said by Jackson, C. J., in Smith v. Jones, 66 Ga. 338: ‘The flood gates are open wide as to the competency of witnesses, and the only breakwater left is the requisition to put this class of contracts, and others of similar character, in writing. ’
“Accordingly, we hold that parol evidence was not admissible to supplement the memorandum offered in this case, because the law demanded the contract should be in writing, and the trial court ruled correctly in so holding.....
“The memorandum does not support plaintiff’s evidence. If there was su'ch an agreement as plaintiff’s evidence would prove, then the memorandum was utterly deficient in not stating it, and of course he cannot recover, because the statute required a memorandum of that contract, not a memorandum from which all its essentials were omitted. [Hilliard on Sales, p. 232; Smith v. Shell, 62 Mo. 215.] ”

In the ease of Boyd v. Paul, 125 Mo. l. c. 13 and 14, Sherwood, J., used this language: “In the first place, it is one of the fundamentals of the law of evidence that all precedent as well as all contemporaneous negotiations in relation to a contract afterwards reduced to writing, are, in the absence of accident, etc., conclusively presumed to have been swallowed up by, and entirely merged and expressed in, the written instrument, which thenceforth becomes the sole expression of the will and agreement of the contracting parties. This rule has been unvaryingly observed and announced by this court from its earliest to its more recent decisions. [State ex rel. v. Hoshaw, 98 Mo. 358, and cases cited; Tracy v. Iron Works Co., 104 Mo. 193, and cases cited; Jones v. Shepley, 90 Mo. 307, and cases cited.] In the second place, that portion of the contract which was dehors the written assignment of the lease rested in parol, and could not be introduced in evidence without acting in plain contravention of the Statute of Frauds. Where your memorandum under the statute is scant in measure you cannot piece it out by verbal additions. This subject has been so recently and satisfactorily discussed in Ringer v. Holtzclaw, 112 Mo. 519, per Gantt, P. J., and the heresy of the contrary view as contained in O’Neil v. Crain, 67 Mo. 250, so well combated, both on reason and authority, that it is unnecessary to do more than to refer in terms of approval to Ringer’s case.”

In the case of Kelly v. Thuey, 143 Mo. l. c. 435-6, Sherwood, J., said: “‘Sec: 148. II. The Price. In all contracts of sale, assignment, and the like, the price is, of course, a material term. It must either be fixed by the agreement itself, or means must be therein provided for ascertaining it with certainty. In the absence of such provision, either stating it or furnishing a mode for fixing it, the agreement would be plainly incomplete, and could not be enforced; and if the contract is written, this term must appear in the memorandum or written instrument.’ [Pomeroy’s Spec. Perf. (2 Ed.), sec. 148. See, also, Grafton v. Cummings, 99 U. S. 100, 106; 8 Am. and Eng. Ency. Law, 726; Browne, Stat. Frauds (5 Ed.), sec. 376; 1 Warvelle on Vendors, p. 105, sec. 10; Fry, Spec. Perf., sec. 335; Waterman, Spec. Perf., sec. 146; 1 Reed, Stat. Frauds, sec. 417; Williams v. Morris, 95 U. S. 444, 456.] In this case the contract neither states the price nor furnishes the means or data whereby that price can be computed or ascertained, and is therefore an invalid contract and wholly incapable of enforcement. The memorandum being required to be complete in and of itself, parol evidence cannot be admitted to piece out the incomplete writing and make it a complete instrument. At one tipie in this court the heresy was announced that parol testimony was admissible for the purposes indicated. [O’Neil v. Crain, 67 Mo. 250.] The last erroneous adjudication on this subject is found in Ellis v. Bray, 79 Mo. 227; but the contrary and correct ruling was declared in Ringer v. Holtzclaw, 112 Mo. 519, and followed in Boyd v. Paul, 125 Mo. 9, 28 S. W. 171. We hold, therefore, that there is no contract in the case at bar; that is, such an one as satisfies the requirements of the Statute of Frauds.”

And as was said by Marshall, J., in Johnson v. Fecht, 185 Mo. l. c. 345: “The written authority was wholly insufficient to identify the forty acres intended to be sold. And although both the principal and agent may have understood that it was the forty acres of the principal’s farm that lay south of the road, that fact lies wholly outside of the written authority and cannot be added to it by parol. As was said by Sherwood, J., in Boyd v. Paul, 125 Mo. l. c. 14, ‘where your memorandum under the statute is scant in measure you cannot piece it out by verbal additions.’ ” To the same effect is Koons v. St. Louis Car Co., supra.

It will be observed by reading the opinions which hold that parol evidence is admissible to piece out and supplement the written contract, that most of them were based upon contracts which were not covered by the Statute of Frauds at all, or were predicated upon contracts governed by the three first clauses of section 3419, which do not require the contract of sale to be in writing; that is, where he accepts a part of the goods sold and actually receives the same, or where he gives something in earnest to bind -the bargain, or where he pays part of the purchase money. All such contracts can be proven by parol; but if no part of the goods purchased was accepted, or nothing was given in earnest to bind the bargain, or no part of the purchase price paid, then by the last clause of the section no action can be maintained, “unless some note or memorandum in writing be made of the bargain and signed by the parties.” And the memorandum under the last clause of this section must embrace all the terms of the contract, as fully and completely as those governed by section 3418.

In fact, I do not understand counsel for appellant to contend that the contract sued on complies with the provisions of section 3418 which requires the contract to be in writing and signed by the party sought to be charged therewith, but they base his right of recovery upon the second clause of section 3419, above mentioned, which takes a contract for the sale of goods, wares and merchandise out of the Statute of Frauds, where something is given in earnest to bind the bargain, and illustrate their position by propounding substantially the following question: “Suppose I own a fine dog worth five hundred dollars, which has been lost or stolen; and suppose I should state to John Jones, ‘If you will find my dog, I will sell him to you for one hundred dollars;’ and suppose John Jones should go forth and find the dog, and then come and offer me the one hundred dollars, and demand the dog, would not that be a binding and valid contract?” Had the offer contained the further provision that it should have been performed in one year, then I would answer unquestionably in the affirmative; but if it was not to be performed in one year, but within five years from and after the date of the offer, then I would answer with equal emphasis in the negative. The reason is clear in each instance. If the contract was to be performed within one year then it would clearly fall within the second clause of section 3419, for the reason that the time and labor expended in finding the dog would be something given in earnest to bind the bargain within the meaning of the statute; but if John Jones had been given three years in which to find the dog, then clearly the contract would have violated section 3418, and the last clause of section 3419'.

That exact question came before this court in the case of Self v. Cordell, 45 Mo. 345. It was there held, where the purchaser of a carding machine by verbal agreement bound himself not to use any other carding machine in the vicinity of the one sold, for a period of five years, that although the contract could not be fully performed within one year, yet having been completely executed by the vendor the vendee could not interpose the Statute of Frauds. The same question again came before this court in the case of Rally v. Reading, 107 Mo. 350. It was there reiterated, that the contract fell within the Statute of Frauds, and overruled so much of the Self-Cordell case which held that the full performance of the contract would take the case out of the Statute of Frauds. In that case there was an assignment or sale of a lessee’s interest in a term exceeding one year and which of course could not be performed within one year from its making. The court held that the contract of assignment was within the Statute of Frauds, and was for that reason void; and the fact that the defendant took possession of the land and paid a portion of the rent to the original lessor did not take the contract out of the Statute of Frauds. And in so holding the court on page 355 used this language: .“And 'said contract also infracts the latter section in as much as the contract is not to he performed, and cannot be performed, according to its terms, within one year ■from the time of it's making. These view's arc readily 'seen to be supported by an examination of the following authorities: Browne, Stat. Frauds, secs. 230, 231, 272, 281; Taylor on Land. and Ten., sec. 427; Durand v. Curtis, 57 N. Y. 7; Pierce v. Estate, 28 Vt. 34. And the fact that the defendant took possession under 'the verbal contract, and made one payment, cuts no figure in this case. Whatever may be the rule in equity as to the doctrine of part performance, the rule has no place in an action at law, as in the present instance. [3 Pars. on Cont. (7 Ed.), 60; Sharp v. Rhiel, 55 Mo. 97.] It is unnecessary to review the authorities in this State; that has been well done by Rombauer, P. J., in Johnson v. Reading, 36 Mo. App. 306. If there are any authorities in conflict with the views here announced, we overrule them.”

It should also be borne in mind that the contract in suit was “for the sale of goods, wares and merchandise for the price of thirty dollars or upwards,” and that no part of the same was delivered to or accepted by the appellant, nor was any earnest money paid or other valuable things given to bind the bargain,' nor was any of the purchase price paid by him, and that the agreement was not to be performed within one year from the making thereof. These two elements of the contract bring it within the letter- and spirit of said section 3418 and the last clauses of section 3419; neither of which permits parol evidence to alter or change, add to or take from the contracts •which are embraced within their provisions. Under those facts, all the authorities, however much they may disagree where the question of performance is involved,-agree in holding the contract void, because it violates the Statute of Frauds. [Standard Fireproofing Co. v. St. Louis Fireproofing Co., supra; State v. Cunningham, 154 Mo. l. c. 172; Noons v. St. Louis Car Co., supra.]

Most of the confusion of the courts is attributable' to their failure to observe the distinctions before mentioned ; that is, all contracts embraced in section 3418, and all of them governed by the last clause of section 3419, must be in writing, while all of those embraced in the first three clauses of section 3419 may or may not be in writing.. If, however, they are reduced to writing, and the writing is complete on its face, then parol evidence is not admissible to alter or add to it; but if the writing is incomplete, and it shows upon its face that all the terms of the contract are not embraced in the writing then parol evidence is admissible to piece out the omitted parts. [Browning v. Walbrun, 45 Mo. l. c. 478; Standard Fireproofing Co. v. St. Louis Fireproofing Co., supra, p. 571; State v. Cunningham, supra, p. 172; Koons v. St. Louis Car Co., supra, p. 255; Binger v. Holtzclaw, supra, p. 523; Boyd v. Paul, supra, p. 14; Warren v. Mayer Mfg. Co., 161 Mo. 112.]

There are numerous other cases in this State announcing the same rule, and it is supported by the great weight of authority, both in this country and in England.

The rule is well stated in the case of Standard Fireproofing Co. v. St. Louis Fireproofing Co., 177 Mo. l. c. 571, by Gantt, P. J., in the following language :

“At common law parol.evidence of prior and contemporaneous agreements was not permitted to change the written contract, because the law conclusively prestuned that all prior and contemporaneous negotiations were merged in the writing and that it contained the entire agreement. An exception to this rule was that if the contract was incomplete on its face, oral testimony was admissible to supply the defects, and, the presumption that all the agreement was in the writing being negatived on its face, no principle of law was violated in admitting the parol evidence. But under the Statute of Frauds if the subject-matter of the contract is within the statute, and the contract or memorandum is deficient in some one or more of the essentials required by the statute, parol evidence cannot be received to supply the defects, for this were to do the very thing prohibited by the statute. [Ringer v. Holtzclaw, 112 Mo. l. c. 523; Boyd v. Paul, 125 Mo. 9; Warren v. Mayer Mfg. Co., 161 Mo. 112.]
“In this case the written contract was complete on its face, and it was clearly not allowable to permit defendant to contradict its plain terms by proof of a parol agreement made prior to its execution.
“Neither does part performance in any manner affect the contract.

The minority opinion fails to observe this distinction, and an inspection of the cases cited therein will show that most of them are based upon contracts which were reduced to writing, but which were not required to be by the Statute of Frauds; and they properly hold that where the contract shows upon its face that there are parts of the contract omitted from the writing, then oral evidence was admissible to prove the omitted parts, and the remainder of those cases have been overruled.

The contract, therefore, being void upon its face, I am of the opinion that the judgment should be affirmed.

Gantt, C. J., Burgess, Valliant and Fox, JJ., concur; Lamm and Graves, JJ., dissent.


source: Caselaw Access Project

author: FOX, J.

license: Public Domain

text:
    HERMAN H. WEHRS v. WILLIAM B. SULLIVAN, Appellant; WILLIAM L. WATKINS, Receiver.
    In Banc,
    March 9, 1909.
    1. RECEIVER: Removal. The power of a court of equity to remove or discharge a receiver whom it has appointed is unquestioned, and may he exercised at any stage of the litigation. The authority to call such officer into being, as the agent of the court, necessarily implies authority to terminate his functions, and to substitute another for him.
    2. -: -: Method of Appointment. It is immaterial whether the Supervisor of Building & Loan Associations, who was substituted as receiver when the other was removed, was appointed upon allegations found in his intervening petition or simply upon the court’s own motion.
    3. -: -: -: Upon Supervisor's Petition. Where proceedings were pending for the winding up of the business of a company or copartnership and the distribution of its assets among its contract holders and creditors, and a decree had been entered appointing a receiver and settling the rights of all the parties to the controversy, the court may, upon an intervening petition, remove the receiver, and appoint the Supervisor of Building & Loan Associations, whom the statute designates as the appropriate person to be the receiver. It was not necessary, in order to appoint the supervisor, that he institute an independent proceeding. The administration of the affairs and the distribution of the assets of the company must ' still proceed under the supervising control of the court.
    4. -: Right to Object: Interest In Controversy. Where the court found that appellant had no other legal relation to the defunct company than that of a mere trustee or manager for such company, and entered a decree dissolving the company, to which appellant made no objections and saved no exceptions, he has no standing on his appeal to the Supreme Court, upon the merits of the controversy, and has no right to complain that the court removed one receiver, who does not complain, and substituted the Supervisor of Building & Loan Associations as receiver.
    Appeal from St. Louis County Circuit Court. — Hon. Jno. W. McElhinney, Judge.
    Affirmed.

      Robert F. Walker and Thos. C. Hennings for appellant.
    (1) The St. Louis Circuit Court had no jurisdiction to entertain the bill of intervention of Supervisor Watkins. State ex rel. v. Renick, 157 Mo. 292; Lovitt v. Russell, 138 Mo. 474; State ex rel. v. Wells, 113 Mo. 42; Jackson v. Railroad, 891 Mo. 104; Danforth v. Lowe, 53 Mo. 217. (2) Only by a direct proceeding in equity can a judgment be set aside after the term has passed at which it was rendered. Smith v. Hauger, 150 Mo. 437. (3) The statute under which the supervisor and the court assumed to .act in appointing Watkins receiver is penal in its nature and should be strictly construed. Sec. 3, Laws 1903, pp. 110-113; K. O. L. & Gr. Co. v. Kansas City, 200 Mo. 159: (4) The statute under which the supervisor and the court assumed to act should be strictly construed because it is in derogation of the common law. Johnson v. Pleutsch, 176 Mo. 452; Zartman v. Reid, 99 Mo. App. 4155. (5) The statute under which the supervisor and the court assumed to act prescribes that the supervisor shall, in having himself appointed receiver of co-operative companies, proceed under the law for the winding up and dissolution of Building & Loan Associations. His appointment is invalid because he ignored the Building and Loan Law and proceeded in equity. Section 1392, R. S. 1899, as amended Laws, 1901, p. 94. (6) The statute under which the supervisor and the court assumed to act also prescribes that the supervisor, in an action to have himself appointed receiver, shall proceed under the statute for the winding up and dissolution of insurance companies. This he did not do but proceeded under an attempted equitable intervention and his appointment was therefore unauthorized. Sec. 9, Laws 1903, p. 113; secs. 8021 and 8023-8027, R. S. 1899. (7) The provisions of the statute for the appointment of receivers of co-operative companies, Laws-1903, pp. 110-113, being purely of legislative creation, the supervisor in seeking to have himself appointed as such receiver is possessed of no power nor can courts adopt any procedure not expressly authorized by such statute. (8) The laws for the winding up and dissolution of Building & Loan Associations and for the winding up and dissolution of insurance companies are dissimilar and many of their provisions are conflicting. The supervisor, before proceeding in each case to have himself appointed a receiver, must determine under which statute he will proceed. This is an attempt to vest him with legislative discretion in the enforcement of the law, which renders it invalid. Sec. 1392, R. S. 1899, as amended Laws 1901, p. 94; secs. 8021, 8023-8028, R. S. 1899; St. Louis-v. Packing Co., 141 Mo. 375; State ex rel. v. Ashbrook, 154 Mo. 375. (9) The court was unauthorized to entertain the bill in equity of the supervisor to have himself appointed receiver for the reason that the act does not contemplate, if valid and operative in other respects, that the supervisor shall be appointed receiver of a co-operative company which is not engaged in business and the affairs of which are being administered in a court of equity. Secs. 1, 2 and 8, Laws 1903, pp. 110-113. (10) There is nothing in the act (Laws-1903) preventing a court of equity from appointing-a receiver for a co-operative company, and when the jurisdiction of such a tribunal once attaches, it mil continue until the matter involved is finally adjudicated. Equity jurisdiction existed to appoint a receiver before the enactment of the law authorizing, under-proper circumstances, the appointment of the supervisor as receiver, and such jurisdiction will continue-after the enactment of this statute, unless it has been abolished by prohibitory statutory enactment. There-is no such prohibitory statutory enactment. Herring-ton v. Utterback, 57 Mo. 519; Penn v. Penn, 39 Mo.. App. 282. Where a court takes jurisdiction of the-subject-matter it may retain jurisdiction until a complete disposition has been made of the case and adjust all equities arising therein. Reyburn v. Mitchell, 106 Mo. 365; Woodward v. Mastin, 106 Mo. 32; Jordan v. Harrison, 46 Mo. App. 172. (11) The Act of 1903 is invalid as a further attempted delegation of legislative power to the supervisor in vesting him with absolute and unrestricted power in prescribing the methods of business and terms of contracts which may be used. This is a discretionary power and not reviewable by any court. The functions of the supervisor are both legislative and judicial. This point was raised in regard to this law in State ex rel. v. Mer. Co., 184 Mo. 169; but was not passed on by the Supreme Court. St. Louis v. Packing Co., 141 Mo. 315; Barthet v. City of New Orleans, 24 Fed. 563; Tel. Co.-v. Myatt, 98 Fed. 335; State v. Johnson, 61 Kan. 803.
   FOX, J.

This cause is presented to this court upon appeal from an order of the circuit court of St. Louis county, Missouri, refusing to vacate an order appointing William L. Watkins as receiver of the Home Co-operative Company. This proceeding is but one branch of numerous legal contests concerning the assets of the Home Co-operative Company of the city of St. Louis.

The facts concerning this controversy are correctly and fully set forth in the recent case of State ex rel. v, Reynolds, 20'9 Mo. 161. This appeal being simply from an order refusing to vacate the appointment of a receiver, it is not essential to reproduce in full all the orders made during the progress of this controversy. It will be sufficient to indicate in a general way the nature and character of this legal contest.

In July, 1905, one Herman Wehrs brought suit in behalf of himself and all other contract-holders and creditors of the Home Co-operative Company of the city of St. Louis, Missouri, against one William B. Sullivan and the Home Co-operative Company of the city of St. Louis, a copartnership, for the purpose of winding up its business and distributing its assets among its contract-holders and creditors. In that action plaintiff prayed for the appointment of a receiver and the usual order of injunction. On the 3d day of July, 1905, with the consent of the defendants, upon motion for that purpose, 'the circuit court appointed Francis A. Tillman, who was the choice of, defendants, receiver in said cause, and enjoined the said defendant company *and William B. Sullivan, their agents, employees and servants, from proceeding further with the business of said company. By said-decree, which was entered by consent, the said William B. Sullivan and the other agents and employees of the said company were ordered to execute and deliver all deeds of conveyances of real estate belonging to said company, and to make all transfers and assignments, sufficient in law, to vest title in said receiver of all the assets and property of every kind and description and wheresoever situated and belonging to and in any way pertaining to the business ■ of said Home Cooperative Company. Said deeds of conveyances, assignments and transfers were duly executed and delivered, as ordered, and the said William B. Sullivan was divested of all right, interest, title and claim in and to the assets and property of the said Home Cooperative Company of every kind and description.

The record discloses that there was no objection or exceptions preserved to the entry of this decree, and on October 3, 1905, a final decree was made and entered in said cause, which was made and agreed upon by the said William B. Sullivan and the said company. In said decree the court made the following findings:

“That the Home Co-operative Company was a co-partnership composed and consisting of its contract-holders. That it was insolvent and had ceased to do business before the filing of said suit. That the said William R. Sullivan and his assignors never, at any time, occupied any other legal relation to said company than that of mere trustees or managers for said company, and, as such, conducted for it its business. It decreed and adjudicated that said co-partnership be dissolved. That the order of July 3, 1905, made and entered in said cause, be in all particulars confirmed and that said receivership and injunction, as therein granted,.be confirmed and made permanent.”

The record fails to disclose the preservation of any exception to the entry of said final decree and no appeal was taken from it. .

At a subsequent term of- said circuit court an order was entered of record ordering said William' B. Sullivan and the contract-holders and creditors of' said Home Co-operative Company, for which Tillman had been appointed receiver, to appear before the court on April 7, 1906, and show cause why the judgment or decree in said cause making the injunction permanent and confirming the appointment of Tillman as receiver of said company, should not be vacated and set aside. On April 7, 1907, the order to show cause was continued until. April 11, 1906. At this time one William L. Watkins, Supervisor of Building & Loan Associations of the State' of Missouri, filed what he termed an interplea, asking the court to vacate and set aside the judgment or decree heretofore rendered in said cause, to remove Tillman as receiver and appoint Mm, Wat-Mns, as receiver.

On the 21st day of April, 1906, and at a subsequent term of said court, William L. Watkins, Supervisor of Building & Loan Associations of the State of Missouri, was substituted as receiver for said Francis A. Tillman, who was removed and later discharged as snch receiver. In and by such decree all contract-holders and creditors were allowed to intervene in said cause. One of the creditors, Louis Boulter, filed his petition in said cause to be allowed to intervene in said cause, which petition was duly ordered to be allowed, by said court. Said petition and order allowing him to intervene in said cause were made prior to the rendition of. the final decree in said cause. An order was entered requiring said Tillman to turn over all the assets of said company to "Watkins, which was done, and Watkins as supervisor and receiver took charge of the assets and representatives of value of said company. William B. Sullivan thereupon filed a motion to set aside the interlocutory decree appointing said Watkins, as supervisor, receiver of said Home Co-operative Company, which was by the court overruled, exceptions were saved thereto and an affidavit for appeal to the Supreme Court filed, which was by the trial court denied. Said Sullivan thereupon was granted upon his application a writ of mandamus, directed to the trial judge, requiring him to grant an appeal from his refusal to vacate and set aside the interlocutory order appointing said Watkins, supervisor, receiver of said Home Co-operative Company. Upon the service of the alternative writ of mandamus upon the trial judge an appeal was granted to this court, and the record upon said appeal is now before us for consideration.

This is a sufficient indication of the nature and character of this controversy to enable us to determine the legal proposition involved in the proceeding.

OPINION.

The legal propositions disclosed by the record upon this appeal rest within a very narrow compass. The record discloses and it is conceded by counsel on both sides of this case that the appeal now before us is simply from an order of the court refusing to vacate the appointment of William L.' Watkins, as receiver of the Home Co-operative Company; hence it follows that our review of the disclosures of the record upon this appeal must be limited to the action of the court in refusing the order as above indicated. The final decree made in this cause is not before us, and the proposition now confronting us simply involves the propriety of the action of the court in refusing such order.

Directing our attention to the propositions involved in this proceeding we find upon examination that another branch of the case concerning the assets of the Home Co-operative Company was in judgment before this court in State ex rel. v. Reynolds, 209 Mo. 161. In that case it was sought to prohibit one of the judges of the circuit court of the city of St. Louis from exercising jurisdiction in a.certain suit pertaining to the collection and distribution of the assets of the Home Co-operative Company, being the same company that is involved in the proceeding in the case at bar. The grounds in their final analysis upon which the relief was sought in that proceeding, were predicated upon the fact that the circuit court of St. Louis county, a court of co-ordinate jurisdiction, had previously acquired jurisdiction of the subject-matter and was proceeding in due form to determine the questions involved in the controversy concerning the assets of the Home Co-operative Company.

In the treatment of the application for prohibition in that case it was essential for the court to review the disclosures of the record made by the circuit court of St. Louis county in order to correctly determine the proposition involved, which was as to whether or not the circuit court of St. Louis county had properly assumed jurisdiction of the subject-matter of the cause then pending before it. Judge Woodson, who wrote the opinion in that case, very carefully recited in substance the record made by the circuit court of St. Louis county, and for the purpose of determining the propositions involved in this proceeding we have substantially adopted the recitations of what the record of the St. Louis County Circuit Court disclosed in the case at bar.

The appointment of Tillman as receiver and his removal and the appointment of Watkins were necessarily involved in the record of the proceedings of the circuit court of St, Louis county, and it became important for this court, in making known its views upn tbe propositions involved in the prohibition proceedings, to at least make some reference to the power and authority of the court to remove or discharge a receiver who had previously been appointed. While this court in that proceeding would not undertake to determine the propositions involved upon the appeal in the case at bar, as to whether the removal of Tillman and the appointment of Watkins was proper or improper, it was manifestly appropriate for the court to discuss the fundamental rules and principles applicable to the appointment and removal of receivers. It was expressly ruled in that case that the circuit court of St. Louis county, as disclosed by the record, had jurisdiction of the parties and the subject-matter of said cause, and in treating of the propositions involved, it was said in that case, speaking through Judge Woodson, that, “In due form and in conformity with the law of the land, said court enjoined Sulliyan and the company from further prosecuting the business, and appointed a receiver to take charge of the assets of the company and ordered him to hold and administer them under the orders and direction of the court. In pursuance to this order the receiver duly qualified and entered upon the discharge of his duties, as such, and reduced to possession the assets of the company. That possession was the same as the possession of the court, for the reason that the receiver is an arm or officer of the court which appointed him, and whatever he does under the order of the court regarding the property involved is the act of the court. [High on Receivers (3 Ed.), sec. 134; Ex parte Haley, 99 Mo. 150; Colburn v. Yantis, 176 Mo. 670; Robinson v. Railroad, 66 Pa. St. 160; Skinner v. Maxwell, 68 N. C. 400; DeVisser v. Blackstone, 6 Blatchf. 235; Mays v. Rose, Freeman’s Ch. (Miss.) 703; Day v. Postal Telegraph Co., 66 Md. 354; Angel v. Smith, 9 Ves. Ch. 335; In re Butler’s Estate, 13 Irish Ch. 456.]

‘ ‘ Clearly, under the facts of this case and according to the law enunciated by the above authorities, the assets of the Home Co-operative Company were in custodia legis on April 11, 1906, the day on which Watkins, the Supervisor of Building & Loan Associations, filed his bill in the nature of an interplea, asking the court to vacate and set aside the judgment and decree theretofore rendered appointing Tillman receiver', and asking that he be appointed receiver under the Act of 1903, Laws 1903, pp. 110-113.

“The legal custody of the property was not disturbed or changed by the order of the court made at a subsequent term removing Tillman as such receiver and appointing Watkins in his stead. [Very v. Watkins, 23 How. (U. S.) 469; Shields v. Coleman, 157 U. S. 178-179.] That order of the court was but the removal of one receiver and the appointment of another in his stead, which the court had a perfect legal right to do. [High on Receivers (3 Ed.), sec. 821.]”

In further discussing the proposition the rule was very clearly and correctly announced that “the power of a court of equity to remove or discharge a receiver whom it has appointed-may he regarded as well settled, and it may be exercised at any stage of the litigation. Indeed, it would seem to be a necessary adjunct of the power of appointment, and to be exercised as an incident to or consequence of that power; the authority to call such officer into being necessarily implying the authority to terminate his functions when their exercise is no longer necessary, or to remove the incumbent for an abuse of those functions, or for other cause. [High on Receivers (3 Ed.), sec. 820; In re Colvin, 3 Md. Ch. 300; Siney v. Stage Co., 28 How. Pr. 481; First National Bank v. Barnum Wire & Iron Works, 58 Mich. 315.]

;<And it is equally well settled that the court in its sound discretion may remove the incumbent and substitute another in his stead. [High on Receivers (3 Ed.), sec. 822; Siney v. Stage Co., 28 How. Pr. 481; Railroad v. Soutter, 154 U. S. 540; Crawford v. Ross, 39 Ga. 44.]”

It will be observed in that case that ’the record which the court was called upon to review for- the purpose of determining whether the relators were entitled to the relief sought, that is, a writ of prohibition, disclosed that an intervening petition had been filed in the circuit court of St. Louis county by Watkins, and that Watkins was appointed receiver instead of Tillman. Whether he was appointed upon the allegations in the intervening petition or simply upon the court’s own motion, is immaterial. The record simply shows that an interplea or an intervening petition was filed and he was appointed instead of Tillman. The final conclusion reached in that case upon the record as recited therein, which is substantially the same as in the case at bar, was that the circuit court of St. Louis county clearly had jurisdiction, and therefore the circuit court of the city of St. Louis ought to be prohibited from entertaining jurisdiction of a subject-matter over which a court of concurrent jurisdiction had prior thereto obtained jurisdiction over the subject-matter and the parties.

In onr opinion, the rules of law applicable to the appointment and removal of receivers, as announced in the Reynolds case, state well and correctly the law upon that subject, and find full support in the numerous authorities cited to sustain it.

But it is contended that the court had no authority to appoint Watkins, who was Supervisor of Building & Loan Associations, such receiver. This insistence is predicated upon the theory that if Watkins, as Supervisor of Building • & Loan Associations, is appointed receiver, it was essential that he should have instituted a suit for that purpose himself under the provisions of the statute which makes provision where certain co-partnerships, associations, organizations or corporations shall become unable to continue in business to thé benefit and profit of their creditors, then the supervisor is authorized to bring an action to have himself appointed receiver. To this insistence we are unwilling to give our assent. It must not he overlooked that this proceeding was pending and a final decree had been entered settling the rights of all parties to that controversy, ’ and the correctness of that decree is unchallenged because it remains in full force and unappealed from. Subsequently Watkins, by an intervening petition, shows to the court that under the provisions of this statute he is the appropriate person to be the receiver of the assets that are already in the hands of the court, and the effect of the order appointing Watkins as such receiver was nothing more than changing the assets of the Home Co-operative Company from one hand of the court to the other. The proceeding, as originally brought, was not dismissed, nor was the final decree as entered in that case nullified. In our opinion, it was not necessary in order to authorize the appointment of Watkins, Supervisor of Building & Loan Associations, receiver of the assets of this company for him to institute an independent- proceeding.

A proceeding for the appointment of a receiver for the purpose of administering and distributing the assets of an insolvent partnership, association or corporation is one appealing to the equity side of the court, and the mere fact that the General Assembly may make provisions authorizing .certain officials in control of certain departments of the State government to institute proceedings for the appointment of a receiver concerning particular subjects, does not in any Way change the equitable nature of the action, but is simply an aid or a supplement to the general and well-recognized rules of equitable jurisprudence which authorizes the institution of suits for the appointment of a íeceiver to administer and distribute the assets of an insolvent company or organization.

Where a cpurt of equity takes jurisdiction of the subject-matter, as was done in this case, it will retain jurisdiction until a complete disposition has been made of the case and adjust all equities arising therein. [Reyburn v. Mitchell, 106 Mo. 365; Jordan v. Harrisort & Platt, 46 Mo. App. 172.]

As was ruled in the case of State ex rel. v. Reynolds, supra, the suit instituted in the circuit court of St. Loius county was a proceeding in the nature of a proceeding in rem, having for its object and purl pose the winding up of the affairs of the Home Cooperative Company and distributing the assets thereof among the creditors, as provided by law. That court had jurisdiction of the subject-matter and of the parties, and in our opinion the court had full power and authority at any stage of the litigation in that case,' in the exercise of a sound discretion, to make such changes in the receivership as it might have deemed proper and appropriate.

We repeat, that the final decree in this cause settled the rights of all the parties to the controversy,, and the appointment of Watkins, Supervisor of Building & Loan Associations, as receiver, in effect was a mere change of the possession of the assets in the hands of the court, and such receiver, even though he he Supervisor of Building & Loan Associations, must administer and distribute the assets of the company in harmony with the finding and adjudications of the final decree, under the supervision of the court. It may be further stated that even should he administer and distribute the assets of.thin company under the provisions of the statute which authorizes him to be appointed as receiver, such administration of the affairs of the company would still have to proceed under the supervising control of the court.

But aside from all that has been said upon this subject, manifestly upon the record before us the appellant has no standing in this court upon the merits of this controversy. He made no objections, nor did he preserve any exceptions to the final decree which adjudicated his status in this proceeding. Mr. Tillman, the receiver, who was removed, is not complaining upon this appeal; nor are any of the creditors of this Co-operative Company making any complaint concerning the appointment of Watkins as receiver instead of Tillman.

As applicable to the conclusions we have reached that there is no merit in this appeal, the adjudications and findings of the court in its final decree, which was consented to by this appellant, become quite significant. As indicated in the statement of this cause, this final decree recites: “That the Home Co-operative Company was a co-partnership composed and consisting of its contract-holders. That it was insolvent and had ceased to do business before the filing of said suit. That the said William B. Sullivan and his assignors never, at any time, occupied any other legal relation to said company than that of mere trustees or managers for said company, and, as such, conducted for it its business. It decreed and adjudicated that said co-partnership be dissolved. That the order of July 3, 1905, made and entered in said catise, be in all particulars confirmed and that said receivership and injunction, as therein granted, be confirmed and made permanent.”

It will be observed in that decree that the court expressly makes the finding that this appellant and his assignors never, at any time, occupied any other legal relation to said company than that of mere trustees or manager of said company, and as such conducted for it its business. Then follows the decree that said co-partnership be dissolved. Under that state of the record the inquiry is quite pertinent, what difference does it make so far as this appellant is concerned as to which one of the receivers, Tillman- or Watkins, administers and distributes the assets of this company? He is not a creditor. He simply bore the relation to the company of manager of its business, and the decree of the court having dissolved such company, it logically follows that he has no interest whatever in the administration and distribution of the assets of this Home Co-operative Company.

There was a motion interposed in this cause after it reached this court to dismiss this appeal. We shall not stop to inquire as to whether or not the appellant has such interest in this controversy as would authorize him to take an appeal, or as to whether or not the order from which the appeal was taken was of that nature and character from which an appeal would lie, but shall be content with the conclusion that the circuit court of St. Louis county had jurisdiction of the subject-matter and the parties, and, as disclosed by the record, was, with due care and diligence, seeking to have the assets of this company administered and distributed to the best interest of all parties having an interest therein.

We are unwilling to further prolong this legal contest concerning the assets of this company. Upon the disclosures of the record now before us we are unable to discover that the action of the court from which this appeal was taken, refusing to vacate an order substituting one receiver for another, was arbitrary. It is plainly shown from the care and diligence manifested by the court, as indicated in the recitals of the record, to fully adjust upon equitable principles the rights of all parties interested in the assets in the hands of the court that its action in substituting one receiver for another was simply the exercise of a sound discretion.

The action of the court in refusing to vacate the order substituting one receiver for another, as was done in this case, should be affirmed, and it is so ordered.

All concur.