author: BROWN, C. PER CURIAM:

text:
    ROSA BARBER v. HARTFORD LIFE INSURANCE COMPANY, Appellant.
    Division One,
    July 9, 1919.
    1. INSURANCE: Res Adjudicate: Decision of U. S. Supreme Court: Assessment: State Tax. Only such questions as were before the court and were decided by it upon writ of error become the law of the case by force of its judgment therein. A decision of the Supreme Court of the United States holding that the Supreme Court of Missouri, in passing on the validity of certain assessments by an insurance company organized under the laws of Connecticut, had not given full faith and credit to certain public acts and judicial proceedings of the State of Connecticut, was not an adjudication of the validity of that portion of each assessment, in-eluding the one on which the alleged forfeiture was based, which included a state tax of two per cent of the amount thereof, nor of that portion of the unpaid assessment which contained a charge of quarterly expense dues not yet due; for the former judgment of the Supreme Court of Missouri was based on no such grounds, but was simply against the validity of the assessment and the forfeiture of the certificate for non-payment, and the question of the right of the company to include the state tax as a part of said assessment, and to declare a forfeiture for its non-payment, is one arising under a state statute, of which the Supreme Court of the United States could take no cognizance upon a writ of error, it being the rule of that court to leave to the state courts the duty of ascertaining and determining the contractual relations of parties dependent solely upon a state law; and, besides, that court did not attempt to determine the validity of assessments which included the state tax.
    2. REVERSAL OF JUDGMENT: Remand for Retrial: Further Procedure. When a judgment is reversed by the Supreme Court and the cause is remanded for a new trial, the trial court has jurisdiction, not only to retry the issues of fact presented by the pleadings in the first trial in accordance the principles announced in the judgment of reversal, but also to reframe those issues as provided by the Code of Civil Procedure; for a retrial does not mean a mere replica of the former trial, but is a trial in the light of the experience and knowledge acquired in the interval.
    3. INSURANCE: Assessment: State Tex as Part. An assessment which includes as a part thereof the two per cent tax mentioned in Section 7099, Revised Statutes 1909, is void, and its non-payment constitutes no ground for a forfeiture of the certificate of insurance.
    4. -: -: -: Doing Business As Old-Line Company. The fact that defendant, since it issued the certificate of insurance, has ceased to issue certificates on the assessment plan and is now doing its assessment business without a special license therefor, but is doing business simply as an old-line joint-stock company, does not affect the substantial rights of the parties to an action on the certificate, nor relieve it of the wrong, of including the two per cent tax in the assessments.
    5. -: -: -: Smallness of Tax. The fact that the tax improperly included in the insured’s assessment amounted to only fifteen cents on each assessment, and that the entire mortuary fund to which it accrues belongs to the certificate-holders, is no ground for upholding an attempted forfeiture of the certificate, where the insured, prior to the attempted cancellation, not only paid illegal exactions amounting to nearly, if not quite, the amount of his alleged delinquency, but also paid a considerable sum into a fund which is held for distribution among living certificate-holders when the amount thereof in force shall have been reduced to one million dollars.
    6. -: -: Forfeiture. The law abhors a forfeiture, and this aversion has resulted in the rule that it may be prevented by a construction as technical as that by which it is invoked.
    7. -: -: Damages: Attorney’s Fees. The fact that when the case was before the court on a former appeal it committed error which caused a reversal of its judgment by the Supreme Court of the United States, did not affect the right of plaintiff to damages for vexatious delay and attorney’s fees on a retrial.
    Appeal from Johnson Circuit Court: — Hon. C. A. Calvird, Judge.
    Affirmed.

      Jones, Hooker, Sullivan & Angert, Geo. F. Haid and James G. Jones, Jr., for appellant.
    (1) The Connecticut court was a court of competent jurisdiction to determine the question of the right of the company to maintain the mortuary fund, and its decree was binding upon the company and all its members. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662; Royal Arcanum v. Creen, 237 U. S. 531; Hartford Life Ins. Co. v. Barber, 245 U. S. 146; Condon v. Mutual Reserve, 89 Md. 99; Taylor v. Mutual Reserve, 97 Va. 60; State ex rel. Hartford Life Ins. Co. v. Shain, 254 Mo. 78. (2) The issue as to the right and propriety of maintaining the mortuary fund and the amount that could properly be held in such fund was involved in the Connecticut case and in the case at bar. Hartford Life Ins. Co. v. Ibs, 237 U. S. 662; Southern Pacific Co. v. United States, 168 U. S. l; Klein v. Insurance Co., 104 U. S. 88. (3) The circuit court denied full faith and credit to the decree of the Connecticut court in the Dresser case by its assumed finding as a fact, without support in the evidence and against the evidence, that the assessment in question was excessive and illegal. Creswill v. Knights of Pythias, 225 U. S. 24&; Northern Pacific v. North Dakota, 236 U.

      S. 585. (4) All questions presented at the second or last trial were before the trial court on the first triaL and appeared in the record on the former appeal in the Supreme Court of Missouri and the Supreme Court of the United States and the judgment of the Supreme Court of the United States became res judicata upon all matters and questions appearing in .the record. United States Trust Company v. New Mexico, 183 U. S. 535; Chaffin v. Taylor, 116 U. S. 567; Tyler v. Maguire, 17 Wall. 283; Pitkin v. Shacklett, 117 Mo. 548; Hill v. Draper, 37 S. W. 574; Castleman v. Buckner, 202 S. W. 681; Illinois Life Ins. Co. v. Wortham, 119 S. W. 802; Clark v. Brown, 119 Fed. 130; McLure v. Bank, 263 Mo. 135. (5) The assessments collected by Hartford Life Insurance Company in Missouri were subject to the two per cent tax upon all premiums collected in the State. Sec. 7068, R. S. 1909, as construed by the trial court, imposes its penalties for failure to pay a policy of life insurance regardless of the good faith of the defense, and so construed, it deprives the defendant of its property without due process of law. Supreme Ruling v. Snyder, 227 U. S. 497; Ry. Co. v. Chicago, 166 U. S. 226.

      Robert Kelley, M. D. Aber, Nick M. Bradley and Charles E. Morrow for respondent.
    (1) The burden was on defendant to show that the assessment was necessary, not excessive and legally made. Barber v. Hartford Life Insurance Co., 269 Mo. 21; Hannum v. Waddill, 135 Mo. 153; Barney v. Modern Woodmen, 79 Mo. App. 385; Agnew v. A. O. U. W., 17 Mo. App. 254; Puschman v. Insurance Co., 92 Mo. App. 640; Johnson v. Hartford Life Ins. Co., -166 Mo. App. 275; King v. Hartford Life Ins. Co., 133 Mo. App. 612; Wayland v. Indemnity Co., 166 Mo. App. 221; Settle v. Ins. Co., 159 Mo. App. 520; lbs v. Hartford Ins. Co., 121 Minn. 310. (2) The assessment is excessive and void. It was not calculated, computed or levied in accordance with the terms of the policy, (a) It contained a two per cent tax, not assessed by tbe company, against the assured, attempted to be collected in advance, in violation of the provisions of the terms of the policy, which was not shown was even levied and assessed by the Superintendent of Insurance, and which, under the law of Missouri, could not be levied against the assessment and was an illegal charge against assured. R. S. 1909, sec. 7099; Northwestern Masonic Aid Assn. v. Waddill, 138 Mo. 628; "Westerman v. Supreme Lodge, 196 Mo. 670; Bankers Life Company v. Chorn, 186 S. W. 618; Young v. Hartford Life Ins. Co., 277 Mo. 694. (b) The dues were not payable until October, 1910, and the dividend of $1.40, in the defendant’s hands, should have been applied in reduction of the assessment, and it is excessive on that account. (3) The defendant wrongfully collected from assured two per cent on all the assessments he had paid on the policy, covering a period of seventeen years, amounting to more than the assessment in question, and defendant was indebted to assured for the amount so wrongfully collected, and should have applied it to the assessment or to reduce it. National Council of Junior Order y. Thomas, 163 Ky. 364; Citizens Life Ins. Co. v. Boyle, 139 Ky. 1; Niblick on • Benefit Societies, sec. 71. (4) By amending its answer, after this case was reversed and remanded, and pleading the failure to pay a- subsequent assessment, due June 1, 1910, the defendant waived the' alleged forfeiture for failure to pay the prior assessment for which it claims the policy was forfeited. Beatty v. Mutual, etc., Ins. Co., 75 Fed. 65; Murray v. Plome Benefit Life Assn., 90 Cal. 402; Union Central Life Ins. Co. v. Jones, 17 Ind. App. 592; Union Central Life Ins. Co. v. Woods, 11 Ind. App. 335; Union Central Life Ins. Co. v. Spinks, 119 Ky. 261; Moreland v. Union Central Life Ins. Co., 104 Ky. 129; Union Central Life Ins. Co. v. Moreland, 56 S. W. 653; Union Central Life Ins. Co. v. Duvall, 46 S. W. 518; National Life Ins. Co. v. Reppand, 81 S. W. 1012; Insurance Co. v. Springgate, 129 Ky. 627; Assurance Soc. v. Ellis, 147 S. W. 1152; 25 Cyc. 871. No notice of the subsequent assessment was given assured. Besides, the defendant claimed a forfeiture for failure to pay assessment due March 1, 1910, before suit, and on that ground only. Thereby, as a matter of law, it waived its right to claim a forfeiture on any other ground. Burges v. Ins. Co., 114 Mo. App. 180; Home Ins. Co. v. Pierce, 75 111. 426 ■ Moore v. National Acc. Soc., 38 Wash. 31. (5) The defendant did not show that the notice of the assessment was ever mailed. It cannot be proven by affidavit. Patterson v. Fagan, 38 Mo. 70; . 2 C. J. 373. The stipulation in the policy, providing that a certificate of the secretary, supported by the affidavit of the person who mailed the notice, should be conclusive proof, is inconsistent with the impartial course of justice, as administered under the law of Missouri, and is against public policy and void. Hope Mutual Ins. Co. v. Flynn, 38 Mo. 483; 13 C. J. sec. 382, p. 46; French v. Wilier, 126 111. 611; Hamilton v. Schoenberg, 47 Iowa,2385; Supreme Council v. Forsinger, 125 Ind. 52; Fidelity & Casualty Co. v. Eickhoff, 63 Minn. 170; New York Fidelity, etc., Co. v. Crays, 75 Minn. 450; Guaranty Co. of North America v. Charles, 92 S. C. 282; Mutual Reserve Fund Assn. v. Cleveland Woolen Mills, 82 Fed. 580; Boyle v. Continental I. & S. Co., 94 U. S. 535; Home Ins. Co. v. Morse, 20 Wall. (U. S.) 445; Mute v. Hamilton Ins. Co., 6 Gray (Mass.), 174; Buell v. Railroad, 53 N. Y. Supp. 749. (6) The dues under the policy were not payable until October, 1910, and defendant cannot forfeit the policy for failure to pay them before that date. Barber v. Hartford Life Ins. Co., 269 Mo. 40. (7) The Supreme Court of the United States reversed this case for the sole reason, as stated in its opinion, that the decisions of this court, affirming the judgment of the trial court, failed to give full faith and credit to the Connecticut decree, and that this error inhered in the instructions to the jury. It remanded this cause for further proceedings, not inconsistent with the opinion of this court. In obedience to this mandate, this court reversed the judgment and remanded this cause generally for a new trial. (8) The opinion of the Supremo Court of the United States did not hold the assessment in this case to be valid, nor did it decide the questions presented to the trial court, and presented here. On the contrary, the opinion of the Supreme Court of the United States recognized that there were both questions of law and fact left open in the ease. The defendant, realizing this, amended its answer, setting up a new defense, and the plaintiff filed a reply thereto, pleading new and additional defenses, and the issues were changed. By so doing, defendant waived the question that the case was not properly remanded for a new trial and that questions were not left open to be determined by the trial court. Carrico v. Lilly, 3 O. K. Marsh (Ky.), 389; Howell v. Sherwood, 242 Mo. 513. (9) By remanding this cause generally for a new trial, without specific directions, this court gave the parties the right to amend their pleadings, and make any legal claim or' defense, not concluded by the opinion of the United States Supreme Court. Wilcox v. Phillips, 260 Mo. 676. (10) Only such questions as were passed upon by the Supreme Court of the United States became the law of this case. That decision cannot be extended to matters not decided. In re Potts, 166 U. S. 263; Mutual Life Ins. Co. v. Hill, 193 U. S. 551; Ex parte Union Steamboat Co., 178 U. S. 317; In re • Sanford Fork & Tool Co., 160 U. S. 247; Barney v. Winona Railroad Co., 117 U. S. 228; Tanizer v. Railroad, 191 Fed. 547; G-winn v. Waggoner, 116 Mo. 151; Howell v. Sherwood, 242 Mo. 513. (11) By reversing this case on one ground, the Supreme Court of the United States did not consider and decide all the questions presented or which might arise at a further trial of the cause. Mutual Life Ins. Co. v. Hill, 193 U. S. 551. (12) Sec. 7008, R. S. 1999, as amended, providing for damages and attorney’s fees, for vexatious refusal to pay a policy of life insurance, is constitutional. Barber v. Hartford Life Ins. Co., 269 Mo. 21; Keller v. Home Life Ins. Co., 198 Mo. 440; Farmer Ins. Co. v. Dobney, 189 U. S. 301; Fraternal Mystic Circle v- Snyder, 227 • H. S. 497; Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123; Fidelity Mutual Life Assn. v. Mettler, 185 H. S. 308; Iowa Life Ins. Co. v. Lewis, .187 U. S. 335; Williamson v. Liverpool, etc., Ins. Co., 141 Fed. 54.
   BROWN, C.

This is a suit founded upon a certificate of life insurance upon the life of Frank Barber for $2000 for the benefit of plaintiff, then his wife and now his widow. It is dated September 4, 1893. Mr. Barber died June 5,1910. The defendant, which issued the certificate, was then and still is an insurance company incorporated and having its principal place 'of business in Connecticut and doing business in Missouri. When this certificate was issued, and for a long time before and ever since, it has been doing business in this State as a stock company, issuing old-line insurance, and has also operated what is called a “ Safety Fund Department,” which issued certificates on the assessment plan until 1899, when it ceased issuing such policies, but continued to administer that department with respect- to the certificates already issued. Barber complied- faithfully with the conditions .of his certificate up to March 31, 1919, when it was cancelled by the defendant on the alleged ground that he had failed to pay a mortuary assessment and a contribution to the expense fund then due and payable according to its terms.

This suit was instituted June 17, 1911, and was tried in the Johnson Circuit Court, where plaintiff had judgment upon a verdict for the amount of the face of the certificate with interest, $200 damages for vexatious delay, and $500 for attorney’s fees. An appeal from that judgment was prosecuted to this court, where, on July 3, 1916, it was affirmed in an opinion published in 269 Mo. 21. In that opinion the principal facts, in-eluding the provisions of the certificate applicable to them, were fully stated and will not be repeated here, but will be referred to as necessary to the understanding of the questions now before us.

A writ of error from the Supreme Court of the United States was directed to this court, upon which our judgment was taken to that court for review upon certain matters wherein it was asserted that full faith and credit had not been given to certain public acts and judicial proceedings of the State of Connecticut. This referred to the power and duty of the directors under its charter in making mortuary assessments upon the certificates issued by the Safety Fund Department, and a judgment of a Connecticut court in a suit by one Dresser, on behalf of himself and all such certificate holders, in which it was adjudged that the Safety Fund Department had the right to maintain, by assessment, a fund for the prompt payment of losses, to be replenished by assessments for such losses when made and collected. The cause was heard in said court and our judgment reversed upon the last stated of these Federal questions in an opinion printed in volume 245 of the reports of said court at page 146 and following, which closes with the following words: “We are of opinion that full faith and credit was not given to the Connecticut record and that -for that reason the present judgments must be reversed.” It also said, in the course of the opinion, that “a jury would have been justified, at least, in finding that the call was made by the directors within the meaning of the instructions, although it did not appear that the directors went over the figures of the officers who made -it up, and voted it specifically.” The judgment and mandate of the court concludes as follows:

“And it is further ordered that this cause be, and the ’ same is hereby remanded to the said Supreme Court for further proceedings not inconsistent with the opinion of this court. November 19, 1917.
“And the same is hereby remanded to yon, the said judges of the said Supreme Court of the State of Missouri, in order that such execution and further proceedings may be had in said cause, in conformity with the judgment and decree of this-court above stated, as, according to right and justice, and the Constitution and laws of the United States, ought to be had therein, the said writ of error notwithstanding.”

Upon receiving the mandate this court' entered and transmitted to the Johnson Circuit Court the following mandate:

“Now, at this day, pursuant to the mandate of the Supreme Court of the United States, heretofore filed herein, reversing the judgment of this court in said cause, it is ordered by the court that the judgment of this court in said cause, entered on the 30th day of March, 1916, affirming the judgment rendered herein by the said Circuit Court of Johnson County, be, and the same is hereby set aside and for naught held. It is further considered and adjudged by the court, in conformity with the said mandate of the Supreme Court of the United States, that the judgment aforesaid of the said Circuit Court of Johnson County, rendered on the 27th day of November, 1912, be reversed, annulled and for naught held and esteemed, and that the said appellant be restored to all things which it has lost by reason of the said judgment. It is further considered and adjudged by the court that the said cause be remanded to the said Circuit Court of Johnson County for a new trial. And it further appearing to the court that on the 28th day of June, 1918, the court made and directed • the entry of an order overruling a motion therefor filed by the said appellant to tax the costs herein, no order is therefore made adjudging costs.”

In pursuance of this mandate the cause was retried and the judgment rendered for the amount of the certificate and interest, with statutory damages and attorney’s fee for vexatious delay, from which, this appeal is taken.

I. At this trial it was shown, both by the defendant’s amended pleadings and the evidence, that in each assessment made by the defendant upon this certificate, including the one on which the alleged for-future is based, a sum was included representing a state tax of two per cent upon the amount thereof. The sums so- paid amounted in all to $11.93, and defendant undertook to justify its exaction under the provisions of Section 7099, Revised Statutes 1909, as in force, in different forms, during the entire life of this certificate. The amount so included in the unpaid assessment was fifteen cents and its inclusion was and is assigned by the plaintiff as a ground for avoiding the forfeiture. The assessment on which the cancellation is based also contained a charge of $1.50 for quarterly expense dues, which the plaintiff asserts was not yet due.

The defendant at the trial objected to the consideration of each of these matters on the ground that they had been already determined by the judgment of the Supreme Court of the United States to which we have referred. The theory of this objection, so far as we are able to understand it, is that the reversal conclusively adjudicated that the certificate was in force at the former trial in the circuit court; otherwise, the judgment should have been affirmed, notwithstanding the errors found in the record with respect to the Federal questions on which the writ of error stood.

Although there was some evidence in the former trial that some such tax had been included in the assessment in question, no such point was made either in the pleadings or at the trial, or mentioned or decided by this court, which placed its affirmance solely upon the two Federal questions upon which the writ of error from the United States Supreme Court was based. Our judgment was against the validity of the assessment and the forfeiture by its non-payment. It implied nothing in its favor. The matter now before us is purely a question arising under the laws of this State, of which the Supreme Court of the United States could take no cognizance upon writ of error. [Waters-Pierce Oil Co. v. Texas (No. 1), 212 U. S. 86, 97, 112; Same v. Same (No. 2), 212 U. S. 112, 118; Sauer v. City of New York, 206 U. S. 536, 546; Eustis v. Bolles, 150 U. S. 361; Murdock v. Memphis, 20 Wall. 590; Cohens v. Virginia 6 Wheat. 264.] These and many other cases which, follow the Cohens ease, supra, have established the rule which is forcibly and logically stated by Mr. Justice Moody in the Sauer case as follows (p. 547): “This court, whose highest function it is to confine all other authorities within the limits prescribed for them by the fundamental law, ought certainly to be zealous to restrain itself within the limits of its own jurisdiction, and not be insensibly tempted beyond them by the thought that an unjustified or harsh rulé of law may have been applied by the State courts in the determination of a question committed exclusively to their, care. ’ ’ It was further said by the same eminent judge in the same case (p. 545): “This court does not hold the relation to the controversy between these parties whicii the Court of Appeals of New York had. It was the duty of that court to ascertain, declare and apply the law of New York, and its determination of that law is conclusive upon this court.” It is clear that if the question now presented, which is clearly dependent solely of the construction and effect of a tax law of this State and the contractual relations with reference thereto of the parties to a Missouri contract was decided by this court in the former case, then the Supreme Court of the United States had no jurisdiction and did not intend by its judgment to adjudicate to the contrary.

Even had the question now brought before us been a Federal question it would have been eliminated from the case in the former appeal by our action in basing our affirmance upon other grounds. [Waters-Pierce Oil Co. v. Texas (No. 1), supra; Missouri, Kansas and Texas Ry. Co. y. Ferris, 179 U. S. 602; Harrison v. Morton, 171 U. S. 38; Glue Company v. Glue Company, 187 U. S. 611.] Only such questions as were before the Supreme Court of the United States and were decided by it became the law of the case by force of its judgment. Its opinion in express terms confines its decision entirely to the two Federal questions, to which we have already referred, and places its judgment upon the sole ground that, in our judgment, we failed to give full faith and credit to' the Connecticut record in the Dresser case. We are without authority to extend the force and effect of that decision to other questions of which that court had no jurisdiction and did not attempt to determine. [In re Potts, Petitioner, 166 U. S. 263; Mutual Life Insurance Co. v. Hill, 193 U. S. 551; . Ex parte Union Steamboat Co., 178 U. S. 317; In re Sanford Fork and Tool Co., 160 U. S. 247; Barney v. Winona Ry. Co., 117 U. S. 228.]

Our judgment remanding the cause to the Johnson Circuit. Court for retrial was in full accord with the mandate of the Supreme Court of the United States, and gave the trial court full jurisdiction, not only to retry the issues of fact presented by the pleadings in the first trial in accordance with the principles announced in the judgment and opinion of the Supreme Court of the United States, but also to reframe those issues as provided by our Code. A retrial does not mean a mere replica of the former trial, but is a trial, as the term implies, in the light of the experience'and knowledge which may have been acquired in the interval. This question was fully discussed by us in Wilcox v. Phillips, 260 Mo. l. c. 676, 677-8.

II. The real question upon which this ease seems to have turned in the trial court is whether or not, by the terms of this certificate, the insurance was forfeited by the failure of the insured to pay the assessment made as of March 1, 1910. It is admitted that this assessment, as well as all other quarterly assessments made to pay losses since the issue of the certificate in September, 1893, included a charge for taxes assessed or to be assessed by and paid to the State of Missouri by the defendant under the following provision of the contract: “If the laws of any country, State, county or municipality shall require a tax to be paid by said .company on account of such payménts, then the mortality calls thereon .shall be determined so as to cover such tax.” It is contended by defendant that the law of the State of Missouri now embodied in Section 7099, Eevised Statutes 1909, requiring the payment of a tax of two per cent upon premiums received on account of business done in this State, also required the payment of a tax similar in amount on all mortuary assessments made and collected from the holders of certificates or policies issued on the assessment plan, and that such liability of the insurer would constitute a valid charge against the insured under the terms of this certificate. In this way the defendant had, during the life of this policy, assessed and collected from Barber upon its quarterly assessments $11.93 as tax required by the laws of this State. In no case, nor at any time, had it been revealed to him by the form of the notice of such assessment or otherwise, that it included any such item or was made upon that plan. We cannot assume that he was advised by law of an unlawful charge, nor of fact which was not disclosed by the data in his possession. The assessment in question included the tax which, upon defendant’s theory, was afterward to be paid to the State. The question is whether this tax was exacted by the State■ by the statutory provision above cited.

It is unnecessary, in view of the former decisions of this court, to elaborate this question otherwise than by citing those cases. The word “premium,” in its application to insurance contracts, has a well settled meaning. The meaning of the word “assessment” in the same connection is equally well understood. It is upon this distinction that life insurance is divided by our Legislature into two general classes or plans, called the stipulated premium plan (Sec. 6963, R. S. 1909) and the assessment plan (Sec. 6950 Id.). As early as the October term, 1896, this court had before it the same question in Masonic Aid Association v. Waddill, 138 Mo. 628. Referring to the taxation of assessment companies under this same provision we said: “To hold • that moneys received by them as ‘assessments’ under this plan are ‘premiums’ within the meaning of Section 2 (5958), which is now one of the ‘provisions or requirements of the general insurance laws of this State,’ would not only be to confound terms and disregard the well defined distinction made between them by the statute as a whole, but to ignore or directly contravene this proviso of Section 5869.” These references are to the Revised Statutes of 1889. The same question ' was last before us in Young v. Hartford Life Insurance Company, 277 Mo. 694, in which the intermediate decisions of this court and the Courts of Appeals were cited, and the cause disposed of by holding that the assessment including the two per cent tax was void, and that its nonpayment constituted no ground for the forfeiture of the insurance. This case is peculiarly applicable, the certificate having been issued against the same fund as the one now in question, and upon the same terms with reference to forfeiture by non-payment of assessments.

These cases are founded upon a marked legislative distinction between a tax upon a burden resting upon the insured, in which the insurer can have no interest, but is a mere conduit between him and his associates, - and the ordinary excise tax upon the receipts from the business of an insurer from which its profits are derived. In this case, which is a typical one, a separate payment is exacted from the insured for expenses which necessarily includes the profits of the company, while the tax is recouped from the mortuary assessment alone. These simply represent a mutual burden.

•While the legislative policy requires no justification, we think it stands on solid ground.

III. The defendant makes the point that it is doing this assessment business without a special license therefor, but simply as an old-line joint-stock company. Appropriating the language of the Supreme q011I^ 0£ tpe pjnited States in the same case, we are inclined to consider this a mere makeshift, which adds nothing to the substantial basis of this case. Whatever profit it may have made from its wrong must bear the burden of the resulting loss.

IY. The defendant has asked with much earnestness for our consideration of the fact that in the assessment involved in this case the tax amounted only to fifteen cents, and insists that the entire mortuary fund to which it accrues belongs to the certificate-holders, and that it is inequitable therefore to sustain this certificate against its attempted cancellation.. We see no force in this contention. The law, it is said, abhors a forfeiture. This aversion has resulted in the rule that it may be prevented by construction as technical as that by which it is invoked. In this case the deceased has not only paid illegal exactions amounting to nearly, if not quite, the amount of his alleged delinquency, but has paid a considerable sum into a fund which is held for distribution among living certificate-holders when the amount of insurance in force shall have decreased to one million dollars. The defendant ceased to issue this class of insurance in 1899, and the time of distribution is rapidly approaching. While equities are not available in cases of this character, we can see no equity in the defendant which can call for mitigation of the legal rule. We have reférred to this question in greater detail in Barber v. Hartford Insurance Company, supra, and Young v. Hartford Life Insurance Company, supra.

Y. We see nothing in the fact that we, when the canse was first before us, committed error in the decision of the Federal question upon which our judgment was reversed, which affects the right of plaintiff to damages and attorney’s fees. We think ^he question was properly and fairly submitted. [Barber v. Ins. Co., 269 Mo. l. c. 42, and cases cited.]

Holding, as we do, that the certificate sued on was not by its terms subject to cancellation for failure to pay the assessment in question and finding no other error in the record, we affirm the judgment of the Circuit Court for Johnson County.

Bailey, G., not sitting.

PER CURIAM:

The foregoing opinion of Brown, C., is adopted as the opinion of the court;

Blair, P. J., and Bond- and Graves, JJ., concur.


source: Caselaw Access Project

author: BOND, C. J.

license: Public Domain

text:
    ESTHER LENORE RANUS, By Her Next Friend, E. L. WINTERMAN, v. BOATMEN’S BANK, Appellant.
    Division One,
    July 9, 1919.
    1. NEGLIGENCE: Insufficient Fire Escapes: Death in Dormitory. Section 10663, Revised Statutes 1909, relating to fires escapes, is applicable to the City of St. Louis, and the death of a member of an athletic club while asleep in the fifth floor When the building was destroyed by fire affords a basis for a legitimate inference that his death was caused by the negligence of the owner in failing to comply with the statutes and ordinances relating to furnishing fire escapes.
    2. -: -: Question for Jury. If the building which deceased occupied at the time it was destroyed by fire, which caused his death, falls within the classification designated in the statutes and ordinances, and was not supplied with the fire escapes required by them, the question of whether insufficient fire escapes was the proximate cause of his death is one for the jury.

      3. -: -: Dormitory: Definition. The common and ordinary significance of the word “dormitory” is a place for sleeping; and the fifth floor of an athletic club, on which 93 rooms were distinctly reserved for sleeping quarters and accommodation of its members, with provision for increasing the number of such rooms to 130, was a dormitory within the meaning of the statute and ordinance, which required that “all buildings of non-fireproof construction, three or more stories in height, used for manufacturing purposes, hotels, dormitories, schools, seminaries, hospitals or asylums, shall have not less than one fire escape for every fifty persons, or fraction thereof, for whom working, sleeping or living accommodations are provided above the second floor.” And the evidence being that the building destroyed by fire did not have the requisite number of fire escapes, the question of whether the insufficient supply was the proximate cause of the death of a member of the club asleep in the dormitory was one for the jury.
    4. -: -: -: Owner’s Knowledge of Use. There ip no necessity of further proof that the owner of the building had knowledge that its lessee, an athletic club, was using the fifth floor of the leased premises for “dormitory” or sleeping purposes prior to the fire which destroyed the building, than the undisputed fact that the building and such floor had been so used for eleven years, during all of which time the owner occupied a portion of it.
    Appeal from St. Louis City Circuit Court. — Hon. Wm. M. Kinsey, Judge.
    Affirmed.

      Lehmann & Lehmann and Fauntleroy, Cullen & Hay for appellant.
    (1) Tlie building was not a hotel or dormitory, (a) If appellant was under any duty to construct fire escapes upon the building in question, it was obligated to construct only such fire escapes as were required and designated by the Building Commissioner of - the City of St. Louis. R. S. 1909, sec. 10668. (b) The building in question was not used for manufacturing purposes, was not a hotel, dormitory or school, seminary, hospital or asylum and hence no one was obligated to construct-thereon one fire escape for every fifty persons for whom working, sleeping or living accommodations were provided above the second story. Secs. 6720, 10668, R. S. 1909; Metzler v. Terminal Hotel Co., 135 Mo. App. 410; 4 Words & Phrases, p. 3349; Hillsdale v. Ride-out, 82 Mich. 94; 1 Corpus Juris, p. 922; Commonwealth v. Pomphret, 137 Mass. 564. (c) It was, therefore, reversible error for the court by Instruction No. 1 to authorize the jury to find that the building was a hotel or dormitory, and to refuse to give Instruction E. requested by appellant. (2) The word “owner” as used in the fire escape laws (Sec. 10666, R. S. 1909; Sec. 421, St. Louis Ordinances 1912) means the person “standing in the shoes of the owner,” and having the dominion and control of an owner. Bender v. Weber, 250 Mo. 563, 566; Behre v. Hemp, 191 S. W. 1042; Roman v. King, 202 S. W. 592; Griffin v. Freeborn, 181 Mo. App. 206; Roberts v. Cottey, 100 Mo. App. 503; Roth v. Adams, 185 Mass. 345; Radley v. Knepfly, 104 Tex. 130 (a fire-escape case); Helling v. Boss, 121 N. Y. S. 1013 (a fire-escape case); Jourdan v. Sullivan, 18Í Mass. 348; Margolius v. Muldberg, 88 N. Y. S. 1048; Boutell v. Shellaberger, 264 Mo. 78, 81. A duty, carrying a weight as grave as the responsibility for human life itself, cannot be supported on a foundation as insubstantial as the baseless fabric of a name. In order to support the weight of such a duty there must be either-, (a) A present legal ability to perform such duty; or (b) An act done to create, or helping to create, such duty; or (c) An act establishing or helping to establish the conditions to which such a duty is by law attached. Mo. Const, sec. 30, art. 2; U. S. Const. 14th Amend, sec. 1; and authorities above. There is no evidence in this case that appellant was in control of the building, or that it leased the building for one of the purposes designated in the fire escape laws (so as thereby to create a duty to construct fire escapes, according to the rule insisted upon by respondent), or that it ever was a party to. any act which brought the building within one of the classes so covered by the fire escape laws (if it ever was brought within any such class). (3) An owner will not be held liable for breach of the fire escape laws unless lie has leased his property for a use within such laws, or unless he knows, or by the exercise of ordinary care would know, that his projjerty is being devoted to such use. Yall v. Snow, 201 Mo. 525; Bell v. Leslie, 24 Mo. App. 668. (4) There is no evidence whatever in this case that appellant knew, or by the exercise of ordinary care would have known, that the Missouri Athletic Club building was being used in a manner or for a purpose which brought it within the scope or operation of the fire escape laws or any of them, so as to require the number of fire escapes held by the lower court to be necessary. (5) If Mr. Ranus were in- fact killed in the fire, his death may have resulted from any one of the following causes, viz: (a) The “highly combustible, dangerous and totally unfit” character of the building; (b) The “highly inflammable and extremely dangerous” nature of the alterations and furnishings and equipment, with which Mr. Ranus and his fellow members supplied their club building; (c) A violent explosion, which occurred a few minutes after the fire started, which immediately spread the flames all over the building, and which defeated all further exodus on the part of the doomed inmates; (d) A defect in the gas connections, which caused the fire to rage with unprecedented violence, and to remain beyond control until the gas pipes were dug up. “If the injury may have resulted from one of two causes, for one of which and not the other the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result, and if the evidence leaves it to conjecture, the plaintiff must fail in his action.” Warner v. Railroad, 178 Mo. 134; G-raefe v. Transit Co., 224 Mo. 263.

      Leonard & Sibley for respondent.
    (1) The building was a hotel or dormitory, (a) The building was of non-fireproof construction, three or more ■ stories in height, used for a hotel or dormitory, and under the law was obliged to have “not less than one fire escape for every fifty persons or fraction thereof for whom working, sleeping or living accommodations are provided above the second story.” Sec. 10668, R. S. 1909, (b) The fire escape law (Secs. 10666-10671, B. S. 1909, and Secs. 317, 318, 337, 338, 421, Ordinances St. Louis of 1912, and Secs. 101, 38, 40, 100, 94, Ordinances St. Louis of 1900) is remedial legislation, and as such is to be construed liberally with a view to effectuate the legislative intention of saving human life. Yall v. Snow, 201 Mo. 521; Rose v. King, 49 Ohio, St. 226. (c) Not only is the law to be construed liberally in the interest of the public, and strictly against the owner, but also the general rule of construing statutes, viz., search for the intention of the Legislature in enacting these police regulations. “What is within the clear meaning and implication of an enactment is as much a part of it as its very letter.” Bryant v. Russell, 127 Mo. 430; 2 Sutherland on Statutory Construction, sec. 695. (d) The word “dormitory,” as used in modern law, means “a place, building or room, to sleep in.” Century Dictionary; Words & Phrases; 14 Cyc. 868; Webster’s New International Dictionary, (e) The word “hotel,” as used in modern law means “a house for entertaining strangers or travelers;” “ a place where transient guests are admitted to lodge, as well as where they are fed and lodged.” Webster’s New International Dictionary; Century Dictionary; Metzler v. Hotel Co., 135 Mo. App. 416. (2) The owner of a building cannot shift his responsibility. He is bound, under the law, to equip the building with a sufficient number of legal fire escapes. Johnson v. Snow, 201 Mo. 450; Yall v. Snow, 201 Mo. 511; Contant v. Snow, 201 Mo. 527. It is immaterial whether or not he has leased the building. Yall v. Snow, 201 Mo. 522; Landgraf v. Kuh, 188 111. 493; Johnson v. Snow, 201 Mo. 455. The owner does not trespass, in entering on leased property for the purpose of erecting fire escapes. Yall v. Snow, 201 Mo. 525. The owner cannot wait for the building commissioner to prod him into action. Steiert v. Coulter, 102 N, E. (Ind. 1913) 13; Willy v. Mulledy, 78 N. Y. 314; Carrigan v. Stillwell, 98 Mo. 253. (3)Appellant conjectures that, (a) the “highly combustible” nature of the building, and (b) the “highly inflammable” nature of the alterations may have caused the death of Mr. Eanus. It is not conjecture, but a certainty, that they caused the building to ranlc as of “non-fireproof construction” (Sec. 10668, E. S. Mo. 1909; Sec. 421, Eev. Code of Ordinances, St. Louis, 1912), and required it to be equipped with the legal number and legal kind of fire escapes. It is obvious that, if the building was not inflammable, and combustible, it would not have burned and the need of hasty exit by the fire escapes would not have developed. The statutes requiring fire escapes were enacted for the protection of those persons housed, employed and lodged within an inflammable and combustible building. It is an odd argument to advance — that the owner is excused for failure to equip the building with proper fire' escapes because the building was of such peculiarly dangerous and inflammable construction that, in the event of fire, those within would probably be burned to death before they could reach fire escapes, anyway. (4) The question of proximate cause in this case was for the jury. The law does not countenance a rule by which “it is possible fcr those only to sue who are crippled, but which so seals up the facts and the law when the lips of the dead are sealed that no action may be brought for their death. Such a view penalizes the innocent for the benefit of the guilty.” “Where, as here, these fire-appliance laws are violated, and death, unexplained, except by the physical facts, occurs by fire in the burning' of a building not equipped with the required appliances, but which is by law required so to be, the rule of res ipsa loquitur should be invoked to take the case to the jury.” Burt v. Nichols, 264"Mo. 1; Arnold v. Natl. Starch Co., 194 N. Y. 42; Landgraf v. Kuh, 188 111. 500.
   BOND, C. J.

Esther Lenore Ranus, the infant child of Arthur T. Ranus, recovered, a judgment of ten thousand dollars against the Boatmen’s Bank for alleged negligence, which caused the death of her father.

On Apiri 9, 1914, at two o’clock in the morning, the seven-story brick building at the corner of Washington Avenue and Fourth Street, in the City of St. Louis, was completely destroyed by fire. The building was occupied by the Missouri Athletic Club, for club purposes, with the exception of one hundred and thirty-five feet on the Fourth Street side and fifty feet ón the Washington Avenue front, which was reserved for and occupied by the Boatmen’s Bank, the owner of the building.

On March 2, 1903, the bank leased to the .Missouri Amusement & Club Supply Company, the part of the building above mentioned, said lease to expire April 1, 1913. Later the bank executed another lease, dated June 30, 1910-, effective April 1,1913, and expiring ten years later, to the Missouri Athletic Club, the original lessee (The Missouri Amusement & Supply Company) having gone out of business. The latter lease covered the same portion of the building as the former. Both leases provided for use of the building as a social and athletic club; that the lessee would keep it in good order and make, at its cost and expense, all repairs necessary (except as to roof, gutters, etc.); that the premises should not be used for any purpose considered more than ordinarily hazardous by the Board of Insurance Underwriters, and that the lessee take over all machinery, steam heating and elevator plants, and furnish heat, etc., to the lessor during the life of the lease.

The building in question was not fire-proof, as understood to-day, but was what is known as the slow-combustion type, and previous to its occupancy by the Missouri Athletic Club was used by the Shapleigh Hardware Company as warehouse, with general offices on the first floor. The ceiling of the bank’s quarters, however, which was virtually on a level with the ceiling of the second floor, was composed of fireproof material which successfully withstood the terrific heat, as the hank’s quarters were found to be intact after the conflagration.

On the consummation of the lease, the club undertook to remodel the building to suit the purposes of a club. In the basement a swimming tank and Turkish baths were installed; the first floor was laid with tile, the walls decorated and the space divided into lobby, office, etc.; the second floor was converted into a billiard room-, a new wooden floor laid and a drop- ceiling put in; the third floor- was converted into a dining room with kitchens adjoining, and a portable Avooden stage was provided for entertainments, equipped in the usual Avay; the fourth floor was made into bowling alleys, and the fifth and sixth floors were partitioned into sleeping dormitories or apartments” (96 in number), and the seventh floor was turned into a gymnasium.

The building was equipped with a spiral fire escape on the Washington Avenue front, running to the seventh floor, which was in conformity Avith the city ordinances at the time it was built, and several years thereafter platforms were added running around the corner of the building to the fifth and sixth floors, said platforms extending over the roof of the adjoining building. There was also an inclosed stairway at the north end of the building intended for use in case of fire, and an outside fire escape on the Fourth Street side of the building. Both of these were built at the time the alterations were made by the club, and the east side escape was planned and erected in conformity to city ordinances, and said plans were submitted to and approved by the building commissioner. The escape on the east side passed various windows in its descent to the ground. All the alterations to the building were made with the consent and by the authority of the defendant bank.

On the day before the fire Mr. Eanus was passing through St. Louis on his way to Kansas City, Avhere he expected to enter into new business relations. He spent the day with a business associate, and after registering at the club and being assigned to Room 36 on the fifth floor, his friend, who is probably the last person who saw him alive, left him there about one o’clock in the morning, just one hour before the fire. Four or five days thereafter his body was found buried in rubbish a little north of the central elevator shaft on the first floor. From the unburned portions of his trousers his watch and keys were taken.

In her petition plaintiff pleaded violation of Seo tions 10666, 10667 and 10668, Revised Statutes 1909, the pertinent parts of which are hereafter quoted, and further pleaded Section 421 of the Revised Code of St. Louis, which provides for the kind and description of fire escapes and their number and location by the Building Commissioner of Public Buildings, and adds, to-wit:

“Provided, however, that all buildings of non-fire-proof construction, three or more stories in height, used for manufacturing or mercantile purposes, hotels, dormitories, schools, seminaries, hospitals or asylums shall have not less than one fire escape for every fifty persons for whom working, sleeping or living accommodations are provided above the second story; and all public halls which provide seating room above the first story shall have such a number of fire escapes as shall not be less than one fire escape for every hundred persons calculated on the seating capacity of the hall, unless a different number is authorized in writing by the commissioner of public buildings.
“Whenever a fire escape attached to any building shall be found to be in an unsafe condition it shall be the duty of the owner, lessee, proprietor of said building to forthwith rebuild or repair the same or replace the same in a safe condition, subject to the penalties of this article. [R. C. St. Louis (Rombauer) 1912.] (Italics ours).

Defendant’s answer admitted the membership of the deceased in the Missouri Athletic Club, denied other allegations, and averred that as such member he assented to the terms and conditions under which the lessee occupied said building, and that as such member he had the further right to control or protest against the construction, state of repair, equipment and means of protection in case of fire, and that he voluntarily occupied a room in said building without due exercise of care for his own safety.

Prom a judgment for ten thousand dollars entered in plaintiff’s favor, the defendant duly appealed.

I. The grounds of action in this case are that the building demolished by fire was one of a class which fell within the definition of the general statutes of this State and the accordant ordinances of the City of St. Louis, requiring the owners thereof to provide specified fire escapes; that the defendant, the owner of the fee of the building, failed to perform this statutory duty and on that account became responsible in damages to plaintiff for the death of her father caused by the burning of the building in question.

That the statute relied on (which was enacted in 1901 and with subsequent amendments is now Sec. 10668, R. S. 1909) is applicatory to the City of St. Louis has been expressly adjudged by both divisions of this court. [Jackson v. Snow, 201 Mo. 450; Yall v. Snow, 201 Mo. 511.]

That a death, in circumstances like the present, affords a basis for a legitimate inference that it was caused by the negligence of the owner in failing to comply with statutes and ordinances regulating the furnishing of fire escapes, has been expressly adjudged by Division Number Two, where it was held that the circumstances attending a loss of life by fire were evidentiary and would take the case to the jury to determine, by legitimate inferences therefrom, whether or not the conflagration was the proximate cause of the death sued for. [Burt v. Nichols, 264 Mo. l. c. 18.]

Under these rulings it necessarily follows that if the building heretofore described as having been leased for ten years to the Missouri Athletic Club falls within the classification of the statutes and ordinances invoked by plaintiff, a case was made for the jury, since it is conceded that it was not supplied with the fire escapes described and required by the terms of Section 10668, Revised Statutes 1909, the pertinent parts of which are, to-wit:

‘ ‘ The number of fire escapes to be attached to any one building as required in this article shall, when the building is located within a city, be determined by the commissioner or superintendent of public buildings within such city . . . Provided, however, that all buildings of non-fire-proof construction, three or more stories in height, used for manufacturing purposes, hotels, dormitories, schools, seminaries, hospitals or asylums, shall have not less than one fire escape for every fifty persons, or fraction thereof, for whom working, sleeping or living accommodations are provided above the second story . . . unless a different number is authorized in writing by the commissioner or superintendent of buildings.” [R. S. 1909, sec. 10668.]

This statute is almost literally copied in tñe concluding part of the second clause of Section 421 of the Revised Code of St. Louis (Rombauer, 1912) quoted above. This statute and this conformatory ordinance present, therefore, the first question to be ruled on this appeal, which is, whether or not the building in question fell within any of the descriptions and classifications of non-fire-proof buildings mentioned in the statute.

In order to resolve this question it is only necessary to refer to the use of the word “dormitory” both in the statute and in the ordinance. The common and ordinary significance of this English form of a Latin word is a place for sleeping. The building in question provided ninety-three distinct rooms for sleeping purposes and also accommodations which would have supplied one hundred and thirty people places to sleep. Although the people entitled to these sleeping quarters and accommodations were restricted to members of the club or their guests, that limitation in nowise contravenes the fact that the building itself was a dormitory and could be occupied as such by one hundred and thirty people. It, therefore, in the strict sense of the term, fell within the purview and intendment of the statute and ordinance when they required that a dormitory in a building constructed like the one in question should be supplied with fire escapes by the owner or lessee of the prescribed kind and number. "We do not think any other -conclusion can be arrived at upon a full and fair consideration of the import and meaning of the word “dormitory” as used in the statute and ordinance, in view of the fact that both of these regulatory laws have been, held to be highly remedial and entitled to a broad and liberal interpretation (Yall v. Snow, 201 Mo. 1. c. 521), and that they are a legitimate exercise of the police powers of the State and the City to prevent the loss of human life.

. It follows that the question as to the applicability of the statute and the local ordinance must be resolved in the affirmative.

II. It is urged by appellant that there was no evidence of knowledge of defendant of the use to which its building was put. In answer to this it may be said there was 110 necessity of further proof of knowledge on the part of defendant that the build‘ing in question was used as a dormitory, than the undisputed fact that it had been so used for about eleven years, during all of which period the defendant bank occupied a portion of it. With the knowledge thus imputed, it became the duty of defendant to take cognizance of and conform to the statutes and ordinances requiring it to provide specified fire escapes for the prevention of a human holocaust such as took place when this building was burned.

III. We have examined the instructions complained of by appellant and are unable to concur in its view that they invaded the province of the jury or , . , , were repugnant or transcended the allegations of the pleadings or contained misdirection requiring a reversal of this judgment.

The judgment of the trial court is affirmed.

It so ordered Blair, P. J., and Graves, J., concur.


author: FARIS, J.

text:
    J. G. STARR, Appellant, v. G. L. CRENSHAW.
    Division Two,
    July 16, 1919.
    1. PURCHASE OF LAND: Unilateral Contract: Mutuality Supplied. A mere option agreement to sell land, though in' its inception unilateral and lacking in mutuality, may, when bottomed on a valuable consideration and accepted by the promisee within the time limited by the promisor, form the basis of an action for specific performance.
    2. -: -: -¡ — : Consideration: Extension. The word consideration is correctly defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise was made. An extension by the vendor of the option agreement for thirty days, made on the last day of the option period and bottomed on a valid consideration, if accepted by the vendee on any day before the extension period expired, is enforcible and cannot be withdrawn before the expiration of such period; and if the vendor agreed to extend the option for thirty days upon condition (a) that the vendee give the vendor a certified copy of the report of his drillings for coal on the land and (b) pay interest on all deferred payments from the beginning of said thirty days in the event he should buy, and he unequivocally accepted the terms of purchase, and continued-the drillings, though he did not furnish the certified report, which could be of no value to the vendor after the vendee’s acceptance, there was a valuable consideration for the agreement, and the vendee is entitled to specific performance.
    3. -: Breach of Contract for Other Reasons. A breach of the option contract to purchase land, by the vendor before the expiration of the option period, for reasons other than the vendee’s failure to perform, relieved the vendee from doing the vain and useless thing of furnishing a certified report of his drillings for coal on the land, called for by the agreement before the vendee had accepted the terms of purchase, but no longer of practical utility after he had accepted, although the drillings themselves furnished the consideration for the agreement.

      Appeal from Barton Circuit Court. — Hon. B. G. Thur- . man, Judge.
    Reversed and remanded (with directions.)

      Fred W. Kelsey and E. F. Cameron for appellant.
    (1) It is conceded that an option to purchase land must be supported by a consideration or it can be withdrawn at any time prior to its acceptance. The option of February 1, 1916, or rather the renewal of the old option of that date was supported by a sufficient consideration to keep it open until March 1, 1916. Crenshaw offered to extend the option provided Starr would do two things: (a) Furnish reports of drilling and (b) pay interest on deferred payments from February 1, 1916, instead of from the date the deal was finally consummated. 6 Am. & Eng. Enc. (2 Ed.), 721 (8), note 6; Green v. Brooks, 81 Cal. 328. If the respondent desired the information as to the location of coal on the land drilled by Starr it was sufficient to support a consideration for a contract. Reed v. Golden, 28 Kan. 451, 42 Am. Rep. 180. A consideration may be defined as a benefit to the party promising, or a loss or detriment to the party to whom the promise is made. 13 C. J. 311 (144A). There is a consideration if the promisee, in return for the promise, does anything legal which he is not bound lo do, whether there is any actual loss or detriment to him or actual benefit to the* promisor or not. 13 C. J. 315 (150) and 316; Glade v. Ford, 131 Mo. App. 164. After February 1st, Starr did drilling at his own expense and furnished the information to Crenshaw. This is of value to Crenshaw. Crenshaw obtained this information and if he is permitted to repudiate his promise or agreement to convey he would thereby be enabled to perpetrate a fraud upon Starr. 13 C. J. 318. (2) The prime function of courts of justice is to enforce the written laAV and enforce established contracts — the contract being as between the parties hereto but the law unto themselves. Evans v. Evans, 196 Mo. 23. (3) When Crenshaw attempted to withdraw the land from the market, that excused Starr from further carrying out any of the terms of his contract of option and making further reports as to the drilling. 6 R. C. L. sec. 374, p. 1012; ■Claes Mfg. Co. v. McCord, 65 Mo. App. 507; 9 Cyc. 635. (4) The fact that Crenshaw cannot convey all of the title does not relieve him from conveying that which he has, and Starr is entitled to receive such title as he has with an abatement out of the purchase money for so much as he cannot deliver. McGhee v. Bell, 170 Mo. 133; Story on Equity Juris. (13 Ed.) sec. 779. The inchoate right of dower should he deducted from the purchase price of this land. Tebeau v. Ridge, 261 .Mo. 574.

      H. W. Timmonds for respondent.
    (1) An option giving the appellant a right to purchase respondent’s land, without binding the appellant to purchase, and without consideration, is not enforceable against the respondent. Davis v. Petty, 147 Mo. 382; Wallace v. Figone, 107 Mo. App. 367. The option given appellant that expired February 1st had no consideration therefor in any respect, but was merely a privilege or permission to enter respondent’s land and drill to ascertain the amount of coal underlying this land. This option was extended by respondent on condition that appellant would give respondent a certified report of his drillings and pay interest on the deferred payments from February 1st if appellant concluded to buy the land — a consideration for the extension of the option, but no consideration in any contract to sell the land. Even if so, no certified report of appellant’s drillings was given respondent. The drillings from the man who did the drilling, let alone giving respondent a certified report, as he agreed to do. This report of the drillings now claimed by appellant to be the consideration to support the alleged contract sued upon is merely a pretext, certainly not of sufficient importance to sustain a contract. (2) Even where there is a binding legal contract for the sale of real estate, a decree for specific performance thereof does not go as a matter of course, but is granted or withheld as the equity of the case demands. Brown v. Massey, 138 Mo. 532; Davis v. Petty, 147 Mo. 385. (3) There must be a consideration for an option to make it a binding contract and enforceable. A mere option to buy land within a specified time does not give either party any claim for damages. Huggins v. Stafford, 67 Mo. App. 474; Eamsey v. West, 31 Mo. App. 676. And may be withdrawn at any time before acceptance.
   FARIS, J.

This is a proceeding in equity by which it is sought to compel specific performance of a certain, option to convey the Southwest quarter of Section 28, in Township 32, Eange 33, in Barton County, Missouri.

The petition is so far in conventional form as that no attack is made thereon by defendant. Among other things, this petition contains an offer by plaintiff of his willingness, ability and readiness to pay into court the sum agreed on, and “to do each and every thing required of him by said agreement and option,” and he further avers that he “has at all times been willing to perform his part of said agreement, and that defendant has refused to accept said performance, and has repudiated and seeks not to be bound by said agreement. ’ ’

The answer of defendant is a general denial, and a specific denial of the legal effect of the alleged option agreement and contract, coupled with the averment that said option was without any consideration whatever, and that it was withdrawn by the defendant before it was accepted by the plaintiff, and that plaintiff for this reason has no right, or claim, or interest in said land, or any cause of action against defendant.

The evidence offered consisted largely of letters and telegrams which passed from time to time between plaintiff and defendant. There was an admission that defendant “is the owner of the property described, to-wit, the Northwest [sic] quarter of Section 28, Township 32, except Mrs. H. C. Timmonds owns an undivided one-half interest in the west half of said Southwest quarter section; and that Mr. Crenshaw is a married man aged 62, and his wife’s age is 58.”

On the 8th day of December, 1915, defendant, in answer to a letter of plaintiff, wrote- plaintiff from Los Angeles, California, a letter, which, omitting formal parts and signature, reads thus:

Yours of the 3rd inst. received and noted. Regarding the price of my coal land SW% 28, 32, 33, Barton County, Mo., will say I am holding it at $18,000 net; $6000 cash, balance in 3 equal annual payments of $4000, 6% interest, payable semi-annually secured by deed of trust, which trust deed will provide that payments shall be made sooner than the terms of the trust deed, provided more than one-third of the coal was taken out each year. In other words, there must be $4000 paid when one-third of the present coal has been removed, if such removal takes place before note is due and so on during the life of the trust deed. I will give you permission to enter the ground and do such prospecting as you may deem necessary anytime up until the 1st of February, without expense or obligation to myself and with the right to you to remove any machinery that you may be using on the premises for that purpose, without restraint or hindrance, on or before the 1st of February, 1916. This is in no sense of the word giving you a lease or possession of the property in any way whatever, except for the sole and only purpose of ascertaining to your satisfaction the amount of coal underlying the land. This privilege shall expire February 1st, 1916.
If you decide to prospect, drop me a line that you accept my terms and I will reply immediately, otherwise you have no right or privilege whatever to enter the premises.

To this letter plaintiff, writing from, Joplin, Missouri, to defendant on December 13, 1915, replied by letter, which letter, again omitting merely formal parts and signature, reads thus:

Replying, to your favor of Dec. 8th, will say we will immediately commence prospecting on your land following a reply from you giving us the privilege to commence prospecting, and have until the first day of February, and will prospect same and accept your proposition as per your letter of the 8th. If we caa find enough coal that is available for steam shovel stripping on the 160 acres to justify us in paying your price, we will accept your terms. If we do not find enough coal so that we can afford to pay the price we will tell you the amount( of coal we think is on your land.
Hoping to hear from you by return mail, I remain,

To this letter, under date of December 17, 1915, defendant replied thus:

Yours of the 13th inst. received in regard to prospecting my coal land in Barton County. In reply, I hereby authorize you to enter upon said coal land SWti 28, 32, 33, Barton County, for the sole purpose of prospecting same for coal at your own expense. I will give you until February 1st to do this prospecting. If you find coal satisfactory, will sell you the land on the terms stated in my letter of the 13th inst.
You must understand that this permission to enter the ground and prospect it is in no way a lease, excepting for the mere purpose of ascertaining to your own satisfaction the quantity and quality of coal underlying the property; and further, the time limited in which you are permitted to make this investigation runs to February 1st, 1916, at which time you will remove all machinery and apparatus of whatever kind from the premises.

Thereafter, as appears from further correspondence, not particularly pertinent to the point in mind,. plaintiff proceeded to drill the land in question, and on January 7, 1916, advised defendant by letter that he had put down several holes, and so far the showing was fairly satisfactory. He added; “We desire to do considerable more drilling, and several days ago bad weather set in here and all work of this nature has been suspended. There is ice all over the district and the drillers cannot do any work. If the weather gets better within the nest few days we will no doubt be able to complete our prospecting by the first of Feb., otherwise we may have to ask for a few days extension.”

On the 31st day of January, 1916, plaintiff sent to defendant the below telegram, to-wit:

The extreme wet and stormy weather has prevented drilling on your land, and weather at this time is very unfavorable. Will you grant thirty days extension on my option to complete work!

To this telegram, on February 1, 1916, the defendant replied as follows:

Will extend option to March 1 provided you wil to (sic) give certified report your drillings, also pay interest on deferred payments from February first in event you buy the land. Other parties want 60 days to prospect as soon as you are through Certified report will save delay. Wire at once.

To this telegram plaintiff wired on February 2, 1916, an acceptance as follows:

Accept your proposition; Will complete drilling as soon as possible.

Thereafter, and on February 8, 1916, plaintiff wrote defendant the following letter:

We received your telegram giving us permission until the first of March to complete the drilling, but that you wanted the notes to bear interest from the first of February in the event that we closed the deal with you. This is satisfactory to us.
The weather has improved some in the last few days and we have about completed our drilling.
According to the drilling there is something like 80 acres of coal on the 160 that probably can be handled with our shovel. No doubt there is more coal than this but it would be in the way of pillars and in such condition that we could not run our shovel over and take off the over burden.
We find that about 30 acres of this 80 acres in the southwest corner of the 160 has about a five-foot vein or strata of sand rock. This will be very expensive operating with our shovel, as it will have to be shot and we are not sure that we can even handle this rock after it is shot. However, we are willing to try this out.
In view of the fact that you will want an agreement stating that in the event a certain amount of coal should be taken off this land before the deferred payments become due, should such be the case I take it from your letter that the payments cannot run one, two and three years. If this is a fact, we deem it would be better to make you a cash offer for this property and have concluded to make an offer of $16,000 for this 160 acres. If you conclude to accept this offer, I would like to have an answer one way or the other, by wire, upon receipt of this letter.
Hoping to hear from you promptly, I remain.

This letter defendant answered on February 11, 1916, as follows:

Your favor of the 8th inst. received, and in reply will say I am willing to stand hy my agreement per letter December 8th, 1915, to sell you the land for $18,000. However, I am not particular at this time about selling the land at that price; and, when you are through with the investigation, send me a statement of such investigation and call the deal off if you wish. Think I can mine the coal and make a good profit above this price.
Should you decide to buy the land, deposit $6000 in the bank of Thomas Egger on or before the 1st of March, payable to my or-den, on the delivery of my Warranty Deed to this land with an Abstract showing clear title, and notify me by wire when you have made such deposit and I will forward the deed to Mr. Egger with instructions to deliver to you upon the payment of this $6000 and your proper execution of the Trust Deed, per my letter of December 8th, in addition to the notes and Trust Deed and an agreement to pay the notes and Trust Deed before due, provided you take out the coal according to my letter of December 8th.
Time is the essence of my letter of December 8th; and, un-, less the matter is closed up strictly on time and according to the terms, I shall not feel under obligation to make the conveyance. I write you this early on this point that you may be prepared and not have an excuse for failing to be prompt. The fact is I regret now that I made you this price, however I will carry out my agreement in good faith if you are promptly on time with your part of the agreement.

Plaintiff, pending the passage between the parties of the above named telegrams and letters, continued to investigate this land by drilling the same. He caused to be drilled thereon twenty-four drill holes in all. This drilling was largely done during the month of February, 1916, and plaintiff says that all of it was probably completed before he sent to defendant the letter quoted above, wherein the statement is made by plaintiff to defendant that ‘‘ there is something like 80 acres of coal on the 160 that probably can be handled with our shovel.

. . . We find that about 30 acres of this 80 acres in the Southwest corner of the 160 has about a five-foot vein, or strata [sic] of sand rock.” For the work of drilling this land plaintiff paid $453.75.

On- February 23, 1916, defendant wired plaintiff, repudiating whatever agreement the above letters and facts constituted. This telegram is as follows:

“Reed report from out attorney. on abstract of title to our coal land. He "says many defects in it which will likely require litigation in circuit court to correct. Therefore we withdraw the land from the market.

Between the 11th day of February, 1916, when the letter last above quoted was written by defendant to plaintiff, and the date of defendant’s repudiation of the option, there seems to have been no communication between plaintiff and defendant, except a wire which plaintiff sent defendant on February 19, 1916, which wire read thus: “Your letter received. What is the best discount you will make if I pay all cash for the land? Answer at once.”

Thereafter, and on February 24,1916, plaintiff wrote defendant as follows:

I wired you this morning in which I thought I was complying with your proposition, but have since found that 1 was wrong and therefore withdraw the statements made in said telegram this morning, and accept your proposition as outlined in your favor of February 11th, 1916, as follows:
“Should you decide to buy the land, deposit $6000 in the bank of Thomas Egger on or before the 1st of March, payable to my order, on the delivery of my Warranty Deed to this land with an Abstract showing clear title, and notify me by wire when you have made such deposit and I will forward the deed to Mr. Egger with instructions to deliver to you upon the payment of this $6000, and your proper execution of the Trust Deed, per my letter of December 8th, in addition to the notes and Trust Deed and an agreement to pay the notes and Trust Deed before due, provided you take out the coal according to my letter of December 8th.”
I am sending bank draft today for said sum of $6000 to Mr. Thomas Egger for deposit for the purpose above described, and request that you forward Warranty Deed and abstract as you have proposed, making said deed direct to “Jesse G. Starr of Joplin, Missouri,” and I will execute the Trust Deed and notes for the deferred payments as outlined.
If you prefer, I can arrange to pay the whole amount in cash, which might simplify the drawing up and making of the papers and the closing of the deal, but will leave that to your‘pleasure. I will request Mr. Egger to notify you of the receipt of said deposit by wire as you request.
Awaiting your advice as to the delivery of the Deed and also the abstract, I remain
Yours truly,
J. G. Stabr,
I am enclosing Missouri form of Warranty Deed for your convenience in preparing deed in the form desired for this State.

Immediately thereafter, plaintiff deposited the sum of $6000 with Thomas Egger, of Lamar, Missouri, as and for the proposed first payment in cash on the land in controversy, of which fact he advised defendant by wire, adding: “Send on your abstract and deed and I will execute note and deed of trust for remainder when abstract is approved.” There seems to have been no answer to this wire, nor any action whatever taken thereon by either party till September 9, 1916, when plaintiff brought this action, praying for specific performance of the alleged contract to convey.

Some few further facts will become pertinent in the course of our discussion, which facts we will set out in connection with the matters to which they are apposite.

The contract here was unilateral — in other words, a mere option in plaintiff to purchase. That such option, though in its inception unilateral and lacking in mutuality may caeteris paribus, when bottomed on a valuable

consideration and accepted bu the promisee

within the time limited by the promisor,

form the basis of an action for specific performance, is in this State no longer open to question. [Warren v. Castello, 109 Mo. 338; Real Estate Co. v. Spelbrink, 211 Mo. 671.]

Upon this view the first and most important question in this case is, was there a valuable consideration for the option? We are of the opinion there was. The word “consideration” has been defined — correctly, we think — as “a benefit to the party promising, or a loss or detriment to the party to whom the promise was made.” [Roller v. McGraw, 63 W. Va. 462; Pabst Brewing Co. v. Milwaukee, 126 Wis. 110; Corbett v. Cronkhite, 239 Ill. 9; Eastman v. Miller, 113 Iowa, 404; Chicora Co. v. Dnnan, 91 Md. 144; Strode v. Transit Co., 197 Mo., l. c. 623; 6 Am. & Eng. Encyc. of Law, 703; 1 Parsons on Contracts, 357.]

Plaintiff, as we gather his position from his argument and brief, seems to consider that there was no binding contract which could have been enforced in this proceeding against defendant till the extension of the option till March 1, 1915, was made. But he contends that this extension, being bottomed upon a valuable consideration, could be accepted by plaintiff up to the expiration thereof on said latter date, and that the same, for the like reason that it was bottomed upon a valuable consideration, could not be withdrawn by defendant till the expiration of such date. We think this position is well taken. The defendant, on February 1, 1916, by his telegram in that behalf, agreed to extend plaintiff’s option to purchase to March 1, 1916, on condition (a) that plaintiff give defendant a certified report of defendant’s drillings, and (b) that he pay interest on all deferred payments from the first day of February, 1916, in the event that plaintiff should buy the land. Plaintiff immediately and unequivocally accepted this proposition, and advised defendant that he would complete drilling as soon as possible. Plaintiff thereafter, and on February 8, 1916, wrote defendant confirming his acceptance of defendant’s offer of an extention for one month as made in defendant’s wire. In this latter letter plaintiff offered to pay in cash the sum of $16,090 instead of the $18,000 as contained in the price made to plaintiff by defendant in deferred payments, and asked for an answer by wire. Instead of answering by wire, defendant wrote to plaintiff the letter of February 11, 1916, wherein he said that he stood by the terms of the original option to sell the land for $18,000, and that he was not particular at this time about selling the land at that price. To this letter he added this: “Should you decide to buy the land, deposit $6000 in the bank of Thomas Egger oh or before the first of March payable to my order on the delivery of my warranty deed to this land, with an abstract showing clear title, and notify me by wire when you have made such deposit and I will forward the. deed to Mr. Egger with instructions to. deliver to you upon the payment of this $6000 and the proper execution of the trust deed per my letter of December 8, in addition to the notes and trust deed and an agreement to pay the notes and trust deed before due, provided you take out the coal, according to my letter of December 8. Time is the essence of my letter of December 8, and unless the matter is closed up strictly on time and according to the terms I shall not feel under obligation to make the conveyance.”

Plaintiff, pursuant to the several telegrams with relation to this drilling, continued to drill the land, and, as stated, put down in all 24 drill holes, at a total expense to him of $453.75. We think there can be no doubt that this was a sufficient consideration within the purview of the definition thereof with which we premised the discussion of this point. For it was clearly “a loss or detriment to the party to whom the promise was made,” that is, to the plaintiff. It was more than this; it was a potential benefit to the defendant, the party promising, in that he was to get, or was promised in the event the plaintiff failed to take the land before the expiration of the term of the option, a certified report of the drillings made, which report, as his telegram stated, would save delay when he came to sell the land to others, in the event plaintiff did not buy. Moreover, there was, in our opinion, an actual consideration promised to defendant from plaintiff, in that defendant required, and plaintiff promised to pay, interest from February 1, 1916, in lieu of the payment of such interest only from the date of acceptance. This certified report of the drilling done was never sent by plaintiff to defendant. Such a report, as we gather from the evidence, seems to be a report made up and certified by the person doing the drilling. The custom of the com munity seems to require, as also does the reason of the thing, that such a report shall show the location of the drill holes upon the land, the number of such holes, together with a log of each hole, that is, a showing of the diameter and depth of' the hole and of the various soils, rock, coal or other minerals or substances through which the drill passes in boring the hole. Plaintiff merely advised defendant, by a letter dated February 8th, 1916, that “there is something like 80 acres of coal on the 160 that probably can be handled with our shovel. ’ ’ To the sufficiency and definiteness of this report no objection was made by defendant, till he filed his answer in this action.

It is strenuously contended by defendant that the failure of plaintiff to make to defendant such certified report, among other reasons mooted, precludes the granting to defendant of the relief prayed for, or of any relief. We cannot agree to this view. In passing, it is apparent that when plaintiff closed his option by an acceptance within the period limited by the option’s terms, the certified report and log of the drill holes interested defendant no more, except as a mere matter of curiosity, or as a basis for mental reflections touching whether his bargain was a good one or a bad one. This is the wholly utilitarian view, and is merely by the way. There is a stronger reason in law. That reason is, that if there was a consideration to support this option Tip to March 1, 1916, and we think there was and have so ruled the point, then defendant could not withdraw or recede from this option till March 1, 1916. He did, however, attempt to recede on February 23, 1916, and to this end wired plaintiff that he had “received report from our attorney on abstract of title to our coal land. He says many defects were in it, which will likely require litigation in circuit court to correct. Therefore, we withdraw the land from the market.” When this notice that defendant would not abide by the option contract to sell the land to plaintiff ivas given, the contract in question yet had six days to run. When defendant breached it before it expired, for reasons other than the failure of plaintiff to perform, the latter was not bound to do the vain and useless thing of furnishing a certified report of the drillings made on the land. This is the general rule adhered to almost uniformly and in all jurisdictions. [Cumberledge v. Banks, 235 Ill. 249; Malloy v. Foley, 133 N. W. 778; Niquette v. Green, 81 Kas. 569; Long v. Nedham, 37 Mont. 408; Guillaume v. Land Co., 48 Ore. 400; Jordan v. Johnson, 98 N. E. 143; Neal v. Finley, 136 Ky. 346; McLeod v. Morrison, 66 Wash. 683.]

Likewise, this same rule has been applied, and with good reason, to breaches of an option to purchase.[Winslow v; Dundom, 125 Pac. (Mont.) 137; Cape Fear Lbr. Co. v. Small, 84 S. C. 434; Harper v. Runner, 85 Neb. 343.]

- It follows that the option, (a) being bottomed upon a valuable consideration, permitted acceptance by plaintiff up to the date at which by its own terms it expired, and (b) that the refusal to abide by its terms before the expiration of the period limited therein for acceptance, relieved plaintiff from a tender of the certified report of the drillings made. Having made tender and profert of full compliance with all the terms of such option on his part in his petition, plaintiff is entitled to a decree for specific performance in so far as the condition of defendant’s title will allow. This decree should go for plaintiff for the whole of the east half of the Southwest quarter of the land in controversy, and for an undivided one-half of the west half of the Southwest quarter thereof, upon payment by plaintiff to defendant of the sum of $13,500, the latter sum to be diminished by the present value of the outstanding inchoate dower of the wife of defendant, in the event such wife shall refuse to join in a conveyance of said land. [Tebeau v. Ridge, 261 Mo. 547.]

Let the case be reversed and remanded, with directions to the court nisi to take such further action therein as is not inconsistent with what we have herein ruled.

It is so qrdered.

All concur.