source: Caselaw Access Project

author: BURGESS, P. J. BURGESS, P. J.

license: Public Domain

text:
    COFFEY v. CITY OF CARTHAGE, Appellant.
    Division Two,
    December 22, 1906.
    1. CONSTITUTIONAL LAW: Title: Increasing Judges of Circuit: Change of Venue. Where the subject-matter of an act has a natural connection with its title, it may he said to he contemplated by its title, although the matter is not mentioned in the title. An act whose title relates to a certain judicial circuit, dividing it into two- divisions, and providing two judges for the transaction of its business, although nothing is said in the title in reference to changes of venue, may contain a provision governing changes of venue.
    2. CHANGE OF VENUE: Two Judges of Circuit: To Another County: Motion to Dismiss. Where the circuit court, which is composed of two divisions, having a judge for each, has jurisdiction over the subject-miatter and the parties, a change of venue awarded by one of them to another county, on an application alleging prejudice on the part of both, without proof in support of the application, is not a nullity, hut at most an irregularity, because the circuit court had power to award a change of venue; and the circuit court of the county to which it is sent has no authority to dismiss the cause upon motion. Such motion should have been made at the time the application was acted upon.
    3. -: When Exception Must be Taken. To enable the appellate court to review the action of the circuit court in passing upon an application for a change of venue, it must appear that an objection was made and exception saved at the term and in the court awarding the change.
    4. -: -: Must be Preserved in Motion for New Trial. An exception saved at the time the change of venue was awarded, will not authorize the appellate court to- consider any error committed in awarding the change, unless the attention ’ of the trial court is called to the matter in the motion for a new trial. A preservation of the exception in a term bill of exceptions does not obviate the necessity, after verdict, of filing a motion for new trial, specifically setting forth the exception complained of.
    6. -: Constitutional Law: Special Act: Applicable to Only', One Circuit. A law governing changes of venue in a named judicial circuit, having special reference to the procedure therein, but applying alike to all litigants in said court, is not unconstitutional as a local or special act. The constitutionality of an act, when attacked as special or local one, is to he determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates; and if it affects generally all persons within its operation alike, it is neither a local nor a special law.
    6. -: -: -: -: Incidents pf Power: Special Condition. The power existing in the General Assembly to pass an act providing for an. additional circuit judge in a circuit, there necessarily goes with that power the lesser one to provide, as an incident to its exercise, for a change of venue in any cause pending in said circuit court, either to the division presided over by the other judge, or, if the reason exists against both judges, to- the circuit court of some other county, even though in doing that it provides for a condition not provided for by the general statute.
    7. NEGLIGENCE: In Exercise of Due Care. That plaintiff, a pedestrian on a public street, was not in the exercise of due care at the time of the accident, is an affirmative defense, to be proved by defendant.
    8. .EVIDENCE: Ordinance: Stipulation. A stipulation that the copy of an ordinance preserved in a former bill of exceptions might be used in lieu of the original ordinance, authorizes the reading of the ordinance in evidence.
    9. NEGLIGENCE: Streets: Grass Plot. Where by ordinance a grass plot ten feet wide between the curbstone and lot line is embraced in the sidewalk, it becomes the duty of the city to keep the entire space in a condition reasonably safe for pedestrians who may have occasion to use it; and for a failure to perform that duty the city is liable in damages to persons for injuries received by them while traveling thereon in the exercise of due care.
    Appeal from Newton Circuit Court. — Rem. F. C. Johnston, Judge.
    Affirmed.

      J. D. Harris and E. O. Brown for appellant.
    (1) The act of the General Assembly, approved March 25, 1901, entitled, “An Act in relation to the 25th judicial circuit, dividing' the court into two divisions, providing two judges for the transaction of the business of said court, for tbe appointment of an additional judge and fixing tbe salaries of said judges,” is void so far as it relates to changes of venue, because it violates article 4, section 28, of Constitution, providing that no law “shall relate to more than one subject, and that shall be expressed in its title. ’ ’ State v. Great Western O. & T. Co., 171 Mo. 634; State v. Bizman, 162 Mo. 1; Witzman v. Railroad, 131 Mo. 612; State ex inf. v. Borden, 164 Mo. 221. (2) The court especially erred in overruling defendant’s- motion to dismiss and strike the case from the docket. Eudaley v. Railroad, 186 Mo. 399. (3) There was no substantial evidence to support the verdict in this case. The court below should, therefore, have sustained defendant’s demurrer to the evidence. The verdict has no better foundation than a mere guess. The practical effect of the judgment in the circuit court is to take the property of the taxpayers and give it to plaintiff. And this is not allowable even in the case of a corporation. The plaintiff was not in the exercise of ordinary care at the time of the accident complained of. Her own testimony shows that she was perfectly familiar with the locality. She testified that she was in the habit of passing over the walk in question nearly every day. She knew of the existence of the hole. She saw it at the time of the accident. Moreover, there is no substantial evidence in this case that the city of Carthage had taken charge of the sidewalk in question. Wheat v. St. Louis, 179 Mo. 572; Kaiser v. St. Louis, 185- Mo-. 366; Ruppenthal v. St. Louis, 190 Mo. 213.

      II. L. Shannon, Cole, Burnett & Williams and Clay & Sheppard for respondent.
    (1) Appellant’s motion for a new trial attacks the order of the court granting a change of venue only on the ground that that portion of the act of the General Assembly approved March 25, 1901, providing two judges for the 25th judicial circuit, relating to changes of venue, is unconstitutional. Therefore, all other objections to the change of venue have been waived. Brady v. Connell, 52 Mo. 19; Cowan v. Railroad, 48 Mo. 556; St. Louis v. Brewing Company, 96 Mo. 677. (2) The record will also support the inference that the change of venue was granted because Judge Dabbs found that Judge Gray was prejudiced, and that he was interested in the result of the suit. If granted on that ground, and that for that reason the order granting a change of venue was erroneously granted, such error was waived by appellant’s failure to specify the same in its motion for a new trial. (3) A reasonable construction of the general law relating to changes of venue would authorize the venue of a cause to be changed to another circuit from a court having two judges, where the judge of the division where said cause was pending had been disqualified by an application for a change of venue. Especially would this be the case where the judge granting the change of venue knew that the other judge was disqualified. It is the duty of a judge granting a change of venue to send the case to a place where the cause for a change of venue does not exist. R. S. 1899, sec. 822. (4) That provision, however, relating to changes of venue, in the act of the General Assembly approved March 25, 1901, entitled, ‘ ‘ An Act in relation to the 25th judicial circuit, dividing the court into two divisions, providing two judges for the transaction of the business of said court, for the appointment of an additional judge, and fixing the salaries of said judges,” is valid and constitutional. State v. Mead, 71 Mo. 268; Ewing v. Hoblitzelle, 85 Mo. 64; State ex inf. v. Ins. Go., 152 Mo. 45; State v. Bixman, 162 Mo. 1; State ex rel. v. Ranson, 73 Mo. 86; State ex rel. v. Comity Court, 128 Mo. 427; O’Bryan v. Ash, 169 Mo. 299; State v. Bengsch, 170 Mo. 105; Elting v. Hickman, 172 Mo. 237; Cox v. Railroad, 174 Mo. 602; Ex parte Loving, 178 Mo. 203. (5) Under the terras of that act Jndge Dabbs was authorized to pass on the qualifications of Judge Gray to try the case at bar, and while he was not bound to accept the affidavit of the applicant as conclusively establishing .the disqualification of Judge Gray, the fact that the application for a change of venue attempted to disqualify Judge Gray certainly does not vitiate the order granting a change of venue. State ex rel. v. Dabbs, 95 S. W. 275; 14 Ency. PL and Pr., 148. (6) The ownership of property in Carthage subject to taxation for municipal purposes was sufficient to' disqualify Judge Gray. Such interest must be a disqualification else it would not have required an act of the General Assembly to qualify jurors in such cases. E. S. 1899, sec. 3790; Jefferson County v. Milwaukee County, 20 Wis. 139; Drainage and Levee Dist. v. Jamison, 176 Mo. 567.
   BURGESS, P. J.

This case was before this court on a former appeal by the plaintiff and will be found reported in 186 Mo. 573, wherein a full and fair statement of the salient facts may be found. The judgment was reversed and the cause remanded. Thereafter plaintiff presented an application for a change of venue based upon the grounds that she could not have a fair and impartial trial before the judge of the division of the court in which the cause was then pending, on account of the prejudice of said jndge, and also alleging that she could not have a fair and impartial trial in the other division of said court, presided over by Judge Howard Gray, on account of his prejudice against her, and because he was interested in the result of the trial of the cause, in that, he was the owner of a large' amount of property in the defendant city subject to taxation for municipal purposes.

The motion was sustained and a change of venue awarded to the circuit court of Newton county in the 24th judicial circuit, to which action of the court plaintiff at the time excepted.

After the cause was transferred to the circuit court of Newton county the defendant filed its motion to dismiss the case and strike the same from the docket of that court on the ground, among others, that the Jasper Circuit Court consisted of two divisions presided over by two judges, and that the plaintiff in her application for change of venue could only disqualify the judge in whose division the case was pending, which motion was overruled, and defendant duly saved its exceptions. The case was tried on the 22d day of December, 1905, in the Newton Circuit Court, and a verdict for thirty-five hundred dollars rendered in favor of the plaintiff. Motions for a new trial and in arrest of judgment were filed and overruled and defendant duly excepted, and appeals.

Defendant insists that the act of the General Assembly approved March 25, 1901, entitled, “An Act in relation to the 25th judicial circuit, dividing the court into two divisions, providing two judges for the transaction of the business of said court, for the appointment of an additional judge and fixing the salary of said judges,” is void in so far as it relates to changes of venue, because in violation of article 4, section 28, of the Constitution, providing that no law ‘ ‘ shall relate to more than one subject, and that shall be expressed in its title.”

While the matter of change of venue is not mentioned in the title to the act it certainly has a natural connection therewith, and it has always been held by the court that such provisions in a law are valid. Thus, in State ex rel. v. Mead, 71 Mo. 266, it was said that, “a provision in an act ‘concerning popular elections,’ authorizing the Governor to fill vacancies in elective offices, is germane to the general subject and is valid.” So it was held in the case of Ewing v. Hoblitzelle, 85 Mo. 70, that a statute providing for the registration of voters, and to govern elections and to create the office of recorder of votes, contained but one subject, and in that case it was said that an act containing provisions relating to matters which are germane to the 'general subject is not obnoxious to the constitutional inhibition that “no bill shall contain more than one subject.” To the same effect are State v. Bennett, 102 Mo. 356; Lynch v. Murphy, 119 Mo. 163, and eases cited. It is not at all necessary to the validity of an act of the Legislature that it embrace every detail of legislation embraced in it, but all the Constitution requires is that the subject embraced, in the act shall be fairly and naturally germane to that recited in the title and we think such is the case with respect to the provision of the act in question.

Other grounds for dismissal assigned in said motion were as follows:

“Second. That the act, ‘Courts of record, Circuit Courts,’ Laws 1901, page 120', passed- and approved March 25,1901, is unconstitutional and void so far as it relates to changes of venue, for the following reasons: The title to said act does not include change of venue, and is in violation of article 4, section 28, of the Constitution.
“That said act is in violation of article 4, section 28, of Constitution.
“Said act is in violation of article 4, section 53, of the Constitution.
“That said act is in violation of article 4, section 53, paragraph 33.
“Finally, said act is void for want of uniformity as a general law.
“Because the affidavit for a change of venue was not sufficient for the reason that it does not sufficiently allege the time when the information of the causes set forth for change of venue came to the knowledge of the plaintiff.
“That the application for a change of venue does not state in the body thereof that the plaintiff could not have a fair, and impartial trial for the reasons alleged therein.”

It is now earnestly insisted that the court erred in overruling this motion because at the time plaintiff’s application for change of venue was made there were two divisions of the Jasper Circuit Court, presided over by as many judges; that this case was assigned for trial to Division No. 2, presided over by Judge Dabbs; that the application sought to disqualify, not only Judge Dabbs on account of prejudice, but also Judge Gray of the other division, and that Judge Dabbs, in granting! the change of venue to Newton county, did so without any proof or showing of prejudice by Judge Gray against the plaintiff, in‘the absence of which the cause should have been sent to Division No. One. But the circuit court of Jasper county over which Judge Dabbs presided had jurisdiction of the subject-matter and of the parties to the suit, and the power to award a change of venue; and although the order for the change may have been made without any existing cause therefor, or without any proof in support of the motion, or even if it had been made without any affidavit at all, still it is not a nullity, at most an irregularity, and the circuit court of Newton county had no authority to dismiss the cause upon the motion.

It should have been made at the time the application for a change of venue was acted upon. [Potter v. Adams’ Exrs., 24 Mo. 159.] In Stearns v. Railroad, 94 Mo. 317, it is held that in order to enable this court to review the action of the circuit court in passing upon an application for a change of venue it must appear that an objection was made and an exception saved at the term and in the court awarding the change of venue. [State v. Dodson, 72 Mo. 283; Squires v. Chillicothe, 89 Mo. 230; Keen v. Schnedler, 92 Mo. 516; State v. Taylor, 132 Mo. 282.]

While it does not seem to he insisted upon in this court, the point was made by defendant in its motion for a new trial that said section six with respect to changes of venue is local and special in its application in that it applies to one county and one judicial circuit only, and, comes within the inhibition of section 53, article 4, of the Constitution, which prohibits the enactment of any local or special law, where a general law can be made applicable; and as to whether or not a general law could have been made applicable in any case, is declared to be a judicial question, and as such to be judicially determined, without regard to any legislative assertion upon that subject.

We are unable to agree to this contention. While the law has special reference to the procedure in applications for change of venue in the 25th judicial circuit, it applies alike to all litigants in said court, whomsoever they may be, and its constitutionality must be determined by the generality with which it affects the people as a whole, rather than by the extent of the territory over which it operates, and if it affects generally all persons within its operation, it is neither a local nor a special law. [State ex rel. v. Yancy, 123 Mo. 391, and authorities cited.]

It is upon this principle that an act of the Legislature providing for the holding of two terms of the circuit court at Montgomery City in Montgomery county was held not a local or special law, in the case of State ex rel. Hughlett v. Hughes, 104 Mo. 459; and that an act of the Legislature establishing the Greene County Criminal Court, and an act separating the clerical duties of that court from the office of the’ circuit clerk, were held not to be local or special laws in the case of State ex rel. v. Yancy, 123 Mo. 391. [See, also, State v. Etchman, 189 Mo. 648.]

The right of the Legislature to pass an act for an additional circuit judge in the 25th judicial circuit being conceded, there can he no question with respect to its right to provide by appropriate legislation for the change of the venue in any cause pending in said court, and to provide that it should he transferred to the division presided over by the other judge, unless reason exist against both judges of said court, then such change should he allowed, to the circuit court of some other county, as now or hereafter provided by general statutes or otherwise disposed of according to law.

As was said by Pox, J., in State v. Etchman, supra: “It is sufficient to say that, having held that the act creating the criminal court was constitutional, the power exists by implication to provide for every necessary incident, without which it could not become properly organized.”

The provision of the act under consideration simply provides that in case of the disqualification of one of two judges in the same circuit that the one ordering a change of the venue in a cause before him shall transfer it to the other, and does no more than provide for a condition not provided for by the general statutes, and is in no sense either local or special within the meaning of the Constitution.

What we have said finds support in the fact that the constitutionality of the act was recognized by the Kansas City Court of Appeals in State ex rel. v. D'abbs, 118 Mo. App. 663, though not directly passed upon in that case.

It is said for defendant that there was no substantial evidence to authorize the verdict in that the evidence showed that plaintiff was not at the time of the accident in the exercise of ordinary care; that it showed that she was perfectly familiar with the place of the accident and knew the existence of the hole. And that there was no substantial evidence that the city of Carthage had ever taken charge of the sidewalk in question. These assertions are not sustained by the record; upon the contrary, there was evidence in regard to all of these matters of an affirmative character on the part of plaintiff sufficient to take the case to the jury. As to the contention that plaintiff was not in the exercise of ordinary care at the time of the accident, that was an affirmative defense on the part of the defendant, and was so pleaded in the answer, and the burden of proof in that respect was upon the defendant.

The action of the court in permitting the plaintiff, against defendant’s objection, to read in evidence Ordinance No. 144 of defendant city, is assigned for error. The contention is that no foundation whatever was laid for its introduction in evidence. But it appears from the record that a stipulation was entered into between the parties by their attorneys, to the effect that the copy of said ordinance, as preserved in the former bill of exceptions, could be used as evidence in lieu of the original of said ordinance, and that the testimony of R. L-undy as preserved in said bill of exceptions could be used in evidence subject to the same objections by defendant that the original evidence would be subject to, the testimony of R. Lundy, city clerk, with respect to said ordinance included. Under this stipulation this evidence was properly admitted, and shows that the original evidence referred to was part of the revised ordinances of said city; that the same was an official record, and as such, the copy thereof as preserved in the former bill of exceptions was by reason of said stipulation properly admitted in evidence. [1 Green-leaf on Evidence (16 Ed.),-sees. 483, 484.]

Plaintiff’s instruction “H” is complained of upon the ground as contended that it told the jury that under the ordinance in evidence it devolved upon- defendant to keep the entire ten-foot space from the curb to the lot line open to the public as a sidewalk, including the grass plot, and reasonably safe' for pedestrians, directing the jury that such assumption should be considered by them in arriving at their verdict. This instruction was given careful consideration by this court when the case was here before, and with respect thereto Judge Fox, in speaking for the court, said:

“Under the ordinances introduced in evidence, it is clear that the entire space between the curbstone and the lot line, including the grass plot, was embraced in the sidewalk and expressly set apart for that purpose by the ordinances of the city. This being true, it was incumbent upon the city to keep the entire space thrown open to the public as a sidewalk, in a condition reasonably safe for pedestrians who may have occasion to use it. The Kansas City Court of Appeals, in Fockler v. Kansas City, 94 Mo. App. 464, properly declared the law applicable to this proposition. It is in perfect harmony with the rule announced by this court in the cases cited in support of the conclusions reached. In the discussion of the question before the court in that case, which was substantially the same as the one in the ease at bar, the law was thus very clearly and concisely presented:
“ ‘It is the well-settled law of this State that it is the duty of cities to keep their streets in a reasonably safe condition fbr the use of the traveling public, and for a .failure to perform this duty they are held to be liable to persons for injuries received by them while traveling thereon in the exercise of due care. It is true that in the case of Tritz v. City of Kansas, 84 Mo. 632, the court held that “a city is bound to keep only so much of its sidewalk in good condition and repair as is necessary to render it reasonably safe for travel.” But in the subsequent cases of Walker v. City of Kansas, 99 Mo. 647, and Kossman v. St. Louis, 153 Mo. 283, the Tritz case was overruled and is no longer authority in this State. The contention of the city is that, as the space left between the sidewalk and the street curbing was not intended for the use of pedestrians, the city owed no duty to the plaintiff to keep, it free from dangerous obstructions. It will be readily conceded that the city, for obvious reasons, had the right to leave a space between the curbing of the street and the sidewalk unimproved. In other words, it was not compelled to put the entire space occupied by the street in the same uniform condition for travel. Cities are not compelled to pave and provide sidewalks for their streets, but they may do so for their own convenience and for the use of the public. But they are compelled to keep them, when thrown open to public use, in a reasonably safe condition for travel. It seems to us that the difficulty with the defendant’s contention is that because the city left a portion of its street unimproved along with and as a part of that which was improved, it owed no duty whatever to the public as to the former.’ [Goins v. Moberly, 127 Mo. 116.] ”

The same rule is announced in the recent case of Ely v. St. Louis, 181 Mo. 723, relied upon by defendant, and is in accord with wéll-settled law. The case of Fritz v. City of Kansas, 84 Mo. 632, also relied upon by defendant as sustaining its contention, has long since been overruled. [Walker v. City of Kansas, 99 Mo. 647; Roe v. City of Kansas, 100 Mo. 190; Goins v. Moberly, 127 Mo. 116,]

Defendant complains of the action of the court in refusing instruction number ten asked by it to the converse of said instruction “H” given in behalf of plaintiff, but if plaintiff’s instruction was correct, as we have held, defendant’s instruction was erroneous and properly refused.

The instructions given when taken all together, while in some respects subject to verbal criticism, presented the case very fairly to the jury.

Finding no reversible error in the record, we affirm the judgment.

All concur.

ON MOTION TOR REHEARING.

BURGESS, P. J.

In a motion for rebearing filed by defendant herein it is said that we overlooked the appellant’s printed record which shows that appellant objected to the action of the Jasper Circuit Court in awarding the change of venue to Newton county and at the time saved an exception to the ruling of the court in granting said change.

That we did not overlook this matter is demonstrated by the fact that in the statement of the case we stated, precisely, what the record discloses with respect thereto — that is, “That the motion for change of venue was sustained and the venue awarded to the circuit court of Newton county in the 29th judicial circuit, to which action of the court defendant at the time excepted.” It is true, however, that this question was not passed upon or adverted to in the opinion, the reason being that the point was not made, nor was the court’s attention in any manner called to it in the motion for a new trial, and being a matter of exception it could not be considered by this court under such circumstances.

It is well settled that no matter of exception can be considered by this court upon appeal or writ of error, unless the attention of the court below be called to it upon motion for new trial. This has been so often decided that it is deemed unnecessary to cite authorities upon the subject. The mere preservation of this question in the Jasper Circuit Court, by having signed by the judge of said court, and filed therein at the same term at which the ruling was made, a bill of exceptions, did not obviate the necessity of thereafter, after verdict, filing a motion for a new trial specifically setting forth therein all matters of exception complained of, and thereby give the trial court an opportunity to correct its own error, or any other errors occurring during the pendency of the .proceeding which were evidenced by the record before the court finally trying the cause.

The motion is overruled.

All concur.


author: FOX, J.

text:
    In re GRADING BLEDSOE HILL, BUCHANAN COUNTY, v. BLEDSOE, Appellant.
    Division Two,
    December 22, 1906.
    1. GRADING HIGHWAY: Act of 1903: Strict Requirements: Rules of Procedure. The act of 1903 (Laws 1903, p. 148) empowering county courts to cause highways to be graded or otherwise improved or repaired, contemplates a procedure that invokes the powers of eminent domain, in that it contemplates the damaging of private property for public use, and prescribes methods for ascertaining those damages; therefore, the same strict rules of law applicable to proceedings wherein it is sought to take private property for public use are equally applicable to proceedings under that act. Hence, all the statutory requirements must be fully and strictly complied with, and unless that is done' the judgment is void.
    2. -: -: -: Commissioners: Recital of Qualifications. Since that act requires that the commissioners appointed to assess the landowner’s damages be disinterested freeholders, and also that a record of the proceedings be kept showing each step taken, the entire proceeding is void unless the record shows that the commissioners appointed were disinterested freeholders.
    3. -: -: -: -: -: Recital in Report. A recital in the affidavit of the commissioners attached to their report to the effect that they are freeholders of the county will not supply a defect in the record which does not state that they are disinterested freeholders. The court is required to appoint commissioners of designated qualifications, and their qualifications must be manifested by the record of the judge or court.

      4. -: -: -: Must Be Sworn: Instructions. Unless the record recites that the commissioners were sworn to ascertain and report the' actual damages in each case separately under instructions given by the judge or court, the proceedings are invalid. An affidavit attached to the commissioners’ report that they are freeholders is not sufficient. Besides, the record should embrace the instructions; it is not sufficient that it merely recite that instructions were filed.
    5. -: -: Constitutionality. Where it is manifest that a judgment against the landowner cannot stand because of a failure to strictly comply with the provisions of the act, a determination of the constitutionality of the act is not necessary to a proper disposition of the case on appeal, and for that reason the constitutionality of said act is not determined or considered in this case.
    'Appeal from Buchanan Circuit Court. — Hon. G. A. Mosman, Judge.
    Reversed and remanded.

      James W. Boyd for appellant.
   FOX, J.

This proceeding is brought to this court by appeal on the part of Henry Bledsoe, appellant, from a judgment rendered in the circuit court of Buchanan county, assessing damages for injury to appellant’s land abutting upon the public road sought to be graded by this proceeding. This proceeding is predicated upon an act of the General Assembly approved March 26, 1903 (Laws 1903, p. 148), to empower county courts to grade public roads and provide a method for paying damages caused by said grading. Sections 1, 2, 3, 4, 5, 6 and 7 of this act provide:

“Sec. 1. Any county court in this State, by an order of record, shall have power to cause to be graded or otherwise improved or repaired, all public highways or parts thereof within such county, at such time, to such extent and of such dimensions as shall be provided by any such order entered of record.
Sec. 2. "When any county court in this State shall make an order of record to grade any highway or parts thereof within such county, the county clerk of any such county shall, at the cost of the county, cause to-be published a copy of said order, within twenty days from the making thereof, in some newspaper printed and published in such county, to be designated by such county court in its said order, once a week for four successive weeks.
“Sec. 3. Within thirty days from the making of any such order, the county surveyor shall furnish the ■ county court, or the clerk thereof, a map: or plat containing a correct description of the several lots or parcels of private property abutting upon the public road proposed to be graded, together with a profile of the said public road proposed to be graded, which profile shall show the natural surface of said public road and the extent of the grading proposed to be done.
‘ ‘ Sec. 4. The proceedings hereinafter provided for may be heard by the circuit court in term time, or by a judge thereof in vacation, and a complete record thereof shall be kept in either case.
“Sec. 5. Whenever the county court or the clerk thereof shall cause to be filed a certified copy of such order and the proof of the publication thereof in the circuit court or with the clerk thereof, such court or judge thereof shall-fix a day and place for assessing the damages to arise from the proposed grading, and shall make an order reciting the order of the county court, and said order shall be directed to- all persons to whom it may concern, without naming them, notifying them of the places and the day fixed for the ascertaining of damages to arise from such grading. A copy of such order shall be published in some newspaper to be designated by the court and of general circulation, printed and published in the county, at least once a week, for four successive weeks, the last insertion to be not more than one week prior to the date fixed for said hearing; said canse may be continued or postponed from time to time. No notice of said proceedings shall be necessary, except as herein provided, and proof of publication of such order may be made by the affidavit of any editor or publisher of such newspaper. On or before the day set for the hearing, any person claiming damages by reason of the proposed grading may file or cause to be filed with the clerk of said court a description of the property claimed to be damaged, and the interest of the claimant therein. The clerk shall note the filing of every such claim as a part of the record in said cause.
“Sec. 6. On the day set for hearing, if the copy of the order has been duly published as herein required, the judge or court shall appoint and cause to be empaneled a board of three commissioners, who shall be distinterested freeholders, and allowed the same fees as jurors are allowed for their services.
“Sec. 7. The commissioners provided for in the preceding section shall be sworn to ascertain and report the actual damages or just compensation to be paid in each case separately under such instructions as shall, after hearing the parties, be given them by the judge or court. Parties interested may submit proof to the commissioners, and said- commissioners shall examine, personally, each piece of property described on such map or plat, and all property claimed to be damaged by such proposed grading. The commissioners shall ascertain and state in their report- or verdict the amount of actual damages to each piece of private property that will be damaged by reason of the proposed grading, having due regard to, and making just allowance for, all benefits to. such piece of property from such grading, and when the damages to any piece of property do not exceed the benefit thereto from the proposed grading, the commissioners shall not report any allowance of damage to such piece. If a majority of the commissioners cannot agree, the judge or court may discharge them, and may proceed to impanel another hoard, hut the order to impanel a new hoard of commissioners must be made on the day of discharging any board of commissioners, and must name the time and place for impaneling the new board.”

Section 8 makes provisions for the verdict of the board of commissioners being signed by a majority of them and the delivery of such verdict or report to the judge or court on the day fixed for such report, and this report may be set aside by the judge or court upon his or its own motion, or on the motion of the county, or for good cause upon the motion of any party interested in the proceeding; and then follows a provision for the appointment of a new board to perform the duties prescribed by this article and the fixing of the time and place of impaneling of a new board and the rehearing of the whole matter. Section 9 provides that the verdict or report shall, unless set aside, be affirmed by the court and judgment entered thereon; that the county pay the damages assessed' therein. Then follows a provision for an appeal by any party aggrieved by the judgment by filing an affidavit as is required in appealing civil cases. It is also provided by section 9 that in case of appeal the judgment shall stand suspended until the appeal is disposed of, and the clerk of the appellate court is required to put the case on docket for hearing at the next term of that court after the appeal is allowed. Following this is a provision in the same section that no error or defect not affecting the rights of the parties shall work a reversal of the judgment; and that the proceedings in the case shall in all respects not provided for in this act conform as near as may be to the practice and procedure in civil cases.

The abstract of record filed by appellant, which is now before us, and it is tbe only abstract filed in this cause, undertakes to recite what occurred in respect to this proceeding in the circuit court of Buchanan county. We deem it unnecessary to burden this' opinion with a reproduction of the entire record, but shall be content with a substantial reference to what the record contains.

The first entry in the circuit court is the order of publication, which recites that: “Be it remembered, on this 22d day of October, 1903, the same being the 26th day of the regular September term of this court, the following proceedings were had in the matter of grading Bledsoe Hill. It appearing to this court that heretofore, to-wit, on the 5th day of September, 1903, the county court of Buchanan county, Missouri, caused to be filed with the clerk of this court, during the vacation thereof, a certified copy of the order made by said county court in the matter of the grading of Bledsoe Hill, together with the proof of publication of said order of said county court. ’ ’ Then follows a reproduction of the order made by the county court on the 6th day of August, 1903, in the matter of the grading of two hills on the public highway at H. Bledsoe’s farm, in pursuance of the provisions of sections 1, 2 and 3 of the statute as herein indicated. In the order by the county court, which was embraced in the order of publication, there was a provision fixing the 23d day of November, 1903; as the day for ascertaining the damages, if any, to arise from grading the public road, or from that portion of it ordered to be graded by the order of the county court, and the place fixed for the hearing of any person interested therein was in Division No. 1 if the court was in session and if not in session before the Hon. A. M. Woodson, judge of said court, in his chambers in the courthouse in St. Joseph, Buchanan county, Missouri, and the further provision that at that time and place commissioners would be appointed as provided by law for the purpose of ascertaining and reporting the actual damages or just compensation, if any, on account of the grading of the public road at the place designated in the order. On the 23d day of November, 1903, the record discloses that proof of the order of publication, as herein indicated, was made, and that at that time the appellant in this cause, Henry Bledsoe, filed a motion to dismiss this proceeding. There is no necessity for incorporating in this opinion the numerous grounds assigned in the motion why this proceeding could not be maintained. It is sufficient to say that such motion embraced every conceivable ground that could possibly be urged why the proceeding could not be maintained. It challenged the regularity of the proceeding as provided by the statute, as well as the jurisdiction of the court and the judge to proceed in the determination of the cause, and finally assails the constitutionality of the law upon which the proceeding is predicated. On the 2d day of December, 1903, the record discloses that the motion heretofore filed to dismiss was submitted to the court, and by the court continued, and at the same time, by agreement of parties, defendant, Henry Bledsoe, has leave to file his claim for damages, which was accordingly ..done, and it was agreed that no point was to be made upon the question of time for the filing of same. The appellant, Henry Bledsoe, prefaced his claim for damages in the following language:

“Now comes Henry Bledsoe, for the purpose of this statement alone, and for the purpose of renewing and státing and restating the matters and things set forth in his motion filed in this court in this case during the last term hereof, and for the purpose of renewing said motion, and for no other purpose. He here now, without waiving or intending to waive any of the matters and things set forth in his said motion filed as herein above stated, which said motion has not been determined, and which he here now renews. ’ ’ Following this he states that he is the owner and has been the owner in fee simple for many years of the tract of land which abnts the public road sought to be graded in this proceeding. The land-is then fully described and the statement is then closed with the claim that if said road is graded in accordance with the plans and under the conditions and to the extent stated in the proceeding in this cause said lands and said Henry Bledsoe as the owner thereof will be damaged in the sum of $1,500; and that no benefit whatever in any shape, manner or form will accrue to the owner thereof, Henry Bledsoe, in consequence of grading or cutting down said public highway. Following this disclosure of the record are the following recitals:
“And no other person appearing herein to claim ■ damages and C. F. Strop appearing in behalf of the county court of Buchanan county, Missouri, by agreement of parties and for good cause shown, this proceeding is continued until Friday, November 27, 1903.
“Now here the court appoints John H. Carey and John L. Leonard and W. D. Rusk as commissioners to assess damages and award benefits.
“Now here the court files his instructions to the said commissioners as to their duties herein.
“A.nd afterwards, on the 8th day of December, 1903, the same being the 51st day of the September, 1903, term of this court, the further proceedings, among others, were had and entered of record, to-wit:
“Comes now William D. Rusk, who- was heretofore appointed as a commissioner herein, and declines to serve as said commissioner. It is therefore ordered that Benjamin J. Woodson be, and he is hereby appointed in his stead to act as one of said commissioners herein.
“And afterwards, on the 1st day of March, 1904, the same being the 44th day of the regular January, 1904, term of this court, the further proceedings, among others, were had and entered of record, to-wit:
“Now here this cause is by the court continued, and the time for filing the report of the commissioners is extended to during the May term of this court.
“And afterwards, on the 10th day of July, 1905, the same being the 50th day of the regular May, 1905', term of this court, the further proceedings were had and entered of record, to-wit:
“Come now the commissioners, heretofore appointed herein, and file their report, which is as follows: '
“We, John L. Leonard, John H. Carey and Ben J. Woodson, commissioners appointed in this proceeding by the court to review the premises of Henry Bledsoe, and ascertain and assess whatever damages, if any, he will sustain by the proposed change of the grade of the public road in front of the premises of said Bledsoe, fronting and adjoining the same in sections thirty and thirty-one, township fifty-five, range thirty-five, in Buchanan county, Missouri, said premises being more particularly described as thirty acres off of the south end of the southeast quarter of the. southeast quarter of section thirty, and twenty-five and one-half acres off of the- north end of the southeast. quarter of section thirty-one, all in said township fifty-five, range thirty-five, in Buchanan county, Missouri, upon; our oath state :
‘ ‘ That after first giving notice to all parties inter-ed, including Henry Bledsoe and James W. Boyd, his attorney of record herein, of the time when we would view the road proposed to be graded and also the aforesaid premises of Henry Bledsoe, we went to and viewed said road and premises, said Henry Bledsoe being at the time present, and we examined the profile made by the surveyor of Buchanan county, Missouri, showing the proposed grading of said road in front of said Bledsoe property, and we further report that afterwards at the court house in the city of Saint Joseph, after giving notice to all parties interested, including Henry Bledsoe, who appeared at said hearing in person, and also James W. Boyd, his attorney of record, who appeared for said Henry Bledsoe at said hearing, we heard all of the parties and all testimony adduced by any of them as to the extent of the damage sustained by said Bledsoe on account of grading said road as proposed in front of said premises, and after said hearing the commissioners have unanimously agreed that the said premises of Henry Bledsoe will be damaged, if said road in front thereof is graded as it is proposed to be graded, to the extent of three hundred and seventy-five dollars.
“Ben Woodson.
John L. Leonard.
J. H. Carey.
“John L. Leonard, John H. Carey and Ben J. Woodson upon their oath state that they are resident freeholders of Buchanan county, Missouri, and that the foregoing is their report as the commissioners appointed in the above proceeding.
“J. H. Carey.
John L. Leonard.
Ben Woodson.
“Subscribed and sworn to before me this 20th day of June, 1905.
“My commission expires March 21, 1909.
“Susan Lawrence,
Notary Public.”

It is further disclosed by the record that upon the filing of the verdict or report of the commissioners, as herein indicated, the appellant Henry Bledsoe, duly filed his exceptions to the report of the commissioners. We shall not undertake to reproduce the numerous grounds alleged in the exceptions to the report for the setting aside of the verdict and report of the commissioners. It is sufficient to say that the exceptions challenged the jurisdiction of the court and the judge thereof to entertain this proceeding against appellant, Bledsoe. It further assigns the failure of the court to comply with the provisions of the statute during' the progress of this proceeding, and that such report was returned without any authority of law and without any instructions hy the court to the commissioners, as provided by the statute concerning the manner of discharging their duties in assessing' the damages suffered hy reason of the grading of the property designated in the order of the county court, and finally the exceptions as filed challenged the constitutionality of the statute upon which this proceeding is based, alleging that it is unconstitutional and void and in violation of sections 23 and 30 of article 2 of the Constitution of this State. There were numerous other grounds embraced in the exceptions, among them the inadequacy of the amount of damages assessed by the commissioners.

Testimony was heard by the court of numerous witnesses in support of the finding and assessment of damages by the commissioners, as well as against the correctness of their finding and assessment of such damages. There was also a record and judgment introduced in evidence of an injunction proceeding commenced in 1902, concerning the grading . of Bledsoe Hill, which was sought to be done under the law in force at that time, but as. this proceeding is predicated upon an act of the General Assembly enacted subsequent to that proceeding, we deem the nature and character of that injunction proceeding as immaterial upon the questions involved in this proceeding, therefore there is no necessity for stating the nature and character of the injunction suit or the judgment rendered in pursuance of it. At the close of the evidence introduced upon the exceptions to the report of the commissioners filed by appellant, the court overruled' and refused to sustain the said exceptions of the appellant or any of them, to which action of the court appellant properly preserved his objections and exceptions. The court then overruled the motion which had been previously filed to dismiss this proceeding and entered a judgment confirming and approving the report of the commissioners, to which action of the court the appellant objected and excepted at the time. Prom this judgment Henry Bledsoe, the appellant herein, prosecuted his appeal, and the record is now before us for consideration.

OPINION.

This cause was submitted to this court on October 12, 1906, upon the stipulation that respondent should have 20 days in which to file record, brief and argument, and that said cause should stand submitted on briefs, and that appellant should have 15 days after the expiration of that time in which to file reply brief. Upon this stipulation it is manifest that the time has long since expired for the filing of any additional abstract of record or brief; hence this cause is now before us upon the Abstract of record and brief as filed .by the appellant.

The record discloses the assignment of numerous errors as grounds for the reversal of the judgment rendered in this proceeding. The brief of learned counsel for appellant fully treats of the propositions disclosed by the record. It is earnestly insisted that the record required to be kept by the court in this proceeding in pursuance of the provisions of section 4 of the act upon which the proceeding is predicated, fails to disclose such a compliance with the requirements of the law necessary to support the judgment. Finally it is urged that the act of the General Assembly upon which this proceeding is based is unconstitutional and void, for the reason that it is in conflict with certain provisions of the Constitution of this State.

We have in the statement of this cause pointed out the recitals of the record undertaking to comply with the provisions of the statute which authorize the institution of this proceeding to accomplish the work and purposes designated by such statute, and upon the disclosures of such record the constitutionality of the act upon which this proceeding is based may be conceded (however, upon that question we express no opinion),' and still a careful analysis of the recitals in such record makes it manifest that they are insufficient to support the judgment rendered in this cause. It is clear that in this proceeding authorized under the provisions of this act the exercise of the power of eminent domain must be invoked. While, technically speaking, it does not condemn private property for public use, yet damaging and injuring property for the betterment of public use are in effect the taking of part of the value of private property for public use; therefore we are of the opinion that there can be no dispute upon the proposition that the same strict rules of law applicable to a proceeding wherein it is sought to take private property for public use are equally applicable to the proceeding in the case at bar. It has been the uniform expression of this ' court that where private property is sought to be taken against the will of the owner under statutory authority all the statutory requirements must be fully and strictly complied with. Burgess, J., in Williams v. Kirby, 169 Mo. 622, thus gave the expression of the rulings of this court upon that proposition. He said: “It has been uniformly held by this court, in proceedings to condemn private property for public use, that unless it affirmatively appear upon the face of the proceedings that every essential prerequisite of the statute confer-, ring the authority has been complied with, such proceedings will be void. [Anderson v. Pemberton, 89 Mo. 61; Whitely v. Platte County, 73 Mo. 30; Jefferson County v. Cowan, 54 Mo. 234; Zimmerman v. Snowden, 88 Mo. 218.]” The rule applicable to this proposition has been nowhere more clearly stated than in Leavitt v. Eastman, 77 Maine 117. The Supreme Court of that State, in discussing this question, said: “It is common learning that where private property is sought to be taken against the will of the owner, under statute authority, all the statute requirements must he fully and strictly complied with. In the procedure no step, however unimportant, seemingly, must he omitted, nor will the substitution of other steps, in the place of those named in the statute, he sufficient. To deprive the citizen of his property requires the whole statute, and nothing in the place of the statute.”

It, therefore, follows that, in harmony with the well-settled rules of law as herein pointed out, it is essential in order to support a valid judgment in this proceeding that it must affirmatively appear upon the face of the record that every essential prerequisite of the statute conferring authority to taire any part of the value of the appellant’s private property for public use has been complied with. This leads us to the consideration of the recitals in the records which undertake to comply with the provisions of the statute. In the first place, section 4 of the act authorizing the institution of this proceeding, fully recognizes the rules of law applicable to proceedings which seek to take private property for public use, that is, that it is essential for the records to disclose a strict compliance with the provisions of the statute; therefore it provides in express terms that, in the hearing of such proceedings by the circuit court in term time, or by the judge thereof in vacation, a complete record of the proceeding's in each case shall he kept. In other words, this sectipn contemplates that a.record shall be kept of the proceeding, showing each and every step taken in it, to the end that it may disclose upon its face a strict compliance with the provisions of the-statute. The abstract of record before us, as presented by appellant, and there is no other filed challenging the correctness of the recitals in such abstract, fails to- disclose a compliance with section 6 of the act of the General Assembly now under consideration. This section requires the judge or court to appoint and cause to be empaneled a board of three commissioners, who shall be disinterested freeholders. The record fails to show the appointment of commissioners possessed of the qualifications required by the statute. The recital in the record is simply this: “Now here the court appoints John H. Carey, John L. Leonard and W. D. Rusk as commissioners to assess damages and award benefits.” The record subsequently discloses that W. D. Busk declined to serve and it was therefore ordered “that Benjamin J. Woodson be and he is hereby appointed to act in his stead as one of said commissioners herein.” It will be observed that there is an entire absence from the recitals in the record that the three commissioners were either disinterested or that they were freeholders, both of which were essential to their qualifications to act. as commissioners in assessing the damages in this proceeding. The appellant, Henry Bledsoe, had the right to have the inquiry of damages to his land made by commissioners possessed of the qualifications provided for in the statute, and it is essential to the validity of this proceeding that the record disclose the appointment of commissioners possessed of such qualifications. It may be argued that the affidavit of the commissioners to the report filed in this cause in which they state that they are resident freeholders of Buchanan county, Missouri, would supply such defect. We are of the opinion that it does not do so. It was the province of the court or judge to appoint commissioners with the requisite qualifications designated by the statute, and the appointment of such commissioners possessed of the requisite qualifications must be manifested by the record of the judge or court hearing the proceeding, and the mere filing of an affidavit by the commissioners stating the requisite qualifications falls far short of complying with the statute which requires the judgment of the court or the judge as to the qualifications of such commissioners, and the evidencing of such judgment by an entry of record.

Again, an examination of the record discloses a failure to comply with section 7 of the act under which this proceeding is sought to be maintained. Section 7 expressly provides that the commissioners as provided for in section 6 shall be sworn to ascertain and report, the actual damages or just compensation to be paid in each case separately under such instructions as shall be given them by the judge or court. There is an entire absence in this record of. any recital that the commissioners to asses the damages in this proceeding were sworn and instructed in accordance with section 7. The affidavit attached to the report of the commissioners is by no means a compliance with that section. That was simply an affidavit that they are resident freeholders of Buchanan County, Missouri, and that the foregoing is their report as the commissioners appointed in the above proceeding. If we are to longer follow that just and well-recognized rule as herein pointed out, that, where it is sought to take private property for public use under the provisions of a statute, it must .affirmatively appear upon the face of the record that every prerequisite of the statute has been complied with, then we take it that it is essential in this proceeding under the provisions of the statute, that the record disclose that the commissioners were sworn to ascertain and report the actual damages or just compensation to be paid under such instructions as shall be given them by the judge or the court. In other words, the record should show that the court instructed the commissioners to assess the damages in accordance with the provisions of the statute, and that they were sworn to ascertain and report such damages in accordance with such instructions. Upon the subject of instructions the record recites that “now here the court files his instructions to the said commissioners as to their duties herein.’'’ The record should embrace the instructions, and it is not sufficient that it merely refers to the fact that instructions were filed. It is essential to a strict compliance with the provisions of that statute that the record disclose what the instructions were to the commissioners, to the end that it may he known as to whether such instructions were in compliance with the provisions of the statute, and that it might be known as to whether or not the commissioners in assessing the damages had complied with the instructions as given them by the court.

We shall not undertake to determine the constitutionality of the act of the General Assembly upon which this proceeding is sought to be maintained. The manifest errors appearing upon the face of the record as herein indicated, respecting the compliance with the provisions of the statute, render it unnecessary todo so. The respondent has no brief filed in this court and when a case is presented which fully complies with the provisions of the statute, and the constitutional question is fully discussed, either orally or by briefs on both sides, it will then he time enough to consider and determine the important question of the constitutionality of this act. It is sufficient now to simply say that in order to maintain this proceeding there must he a strict compliance with every prerequisite of the statute, and the record disclosing that this has not been done in this proceeding, it results in the conclusion that the judgment should be reversed and the cause remanded, and it is so ordered.

All concur.


author: GANTT, J.

text:
    STROTHER v. McMULLEN LUMBER COMPANY, Appellant.
    Division Two,
    December 22, 1906.
    1. CONTRACT: Interpretation. A provision of a contract which in unconditional language seems to invest title in the vendee of lumber upon delivery, must be read in connection with all other provisions thereof in arriving at a correct understanding of what the real intention of the parties was. That rule of construction is now canonized in this State for- both contracts and statutes.
    2. REPLEVIN: Delivery: Cash Payment: Contract. Notwithstanding unconditional language in a contract that title to lumber was to vest in the purchaser upon its delivery, yet if it is clear from further provisions of the contract that the intention of the parties was that the sale was for cash on delivery, the payment of the purchase price was a condition precedent to the vesting of the title in the vendee, and upon failure to make payment the vendor may maintain replevin.
    3. -: -: -: Concurrent Acts. When the vendor makes an actual delivery upon the faith of the contract that payment will be made immediately, no property ■ in the chattels passes to the vendee .if the vendee fails to pay therefor, and for such failure the vendor may maintain replevin, for in such case the delivery and payment were meant to be concurrent acts.
    4. -: -: -: -: Case Stated. The plaintiff contracted for the sale and delivery to defendant of the output of his saw mills during the year 1902, the delivery to be at -the lumber yard adjoining the mill. The contract provided that “immediately on the delivery of any lumber upon said lumber yard the title to said lumber shall at once vest in” defendant, and that “all lumber as it is sawed and before piling and stacking shall be graded and measured” by defendant’s inspector, and “all lumber shall be paid for in full every thirty days.” Held, that the contract constituted an executory sale of all lumber sawed by plaintiff during the year 1902, to be delivered in installments, measured by the quantity manufactured during each thirty days, and the price to be paid at the end of each installment delivered, and not within thirty days thereafter; and plaintiff, having delivered the lumber sawed during August, and having on September 1st demanded payment and that being refused, is entitled by replevin to recover the lumber.
    5. -: - — : -: -: Evidence as to Meaning: Harmless Error. Where the trial court reached the conclusion that the contract on its face was one for a cash sale, error in permitting witnesses to testify that in their opinion the contract was one for a cash sale, is harmless.
    6. APPELLATE PRACTICE: Replevin: Judgment for Damages: Remittitur: Abstract. Where it is stated in respondent’s abstract that plaintiff in the replevin, after verdict and before appeal and motion for new trial, entered a remittitur of the damages allowed, and no objections to that abstract are filed, error of the jury in awarding the damages for lack of proof is not an open question.
    Appeal from Pemiscot Circuit Court. — Hon. Henry G. Riley, Judge.
    Aefirmed.

      Jones, Jones & Hooker and Gann & Peaks for appellant.
    (1) There was a complete delivery of the lumber pursuant to and under the terms of the contract; the title thereto vested in defendant; plaintiff had no property in the lumber; and the court should have directed a verdict for defendant and erred in submitting to the jury any .question pertaining to the title or right of possession. Lumber Co. v. DeLisle, 107 Mo. App.. 615; Hatch v. Oil Co., 100’ U. S. 124; Dexter v. Sevens, 42 Barb. 575; People to use v. Sheehan, 118 Mich. 539; Izett v. Stetson, 22 Wash. 301; State v. Wharton, 117 Wis. 558; Burrows v. Whitaker, 71 N. Y. 291; Hyde v. Lathrop, 3 Keyes (N. Y.) 597; Leonard v. Davis, 65 U. S. 483; Grlass v. Blazer, 91 Mo. App. 564; Ober v. Carson, 62 Mo. 214. Where the contract is silent the title certainly passes where the contract expressly so provides. Williams v. Evans, 39 Mo. 202; Siglerson v. Kahmann, 39 Mo. 206; McMillan v. Schweitzer, 87 Mo. 402; Dowell v. Taylor, 2 Mo. App. 332; Roberts v. Bonlton, 56 Mo. App. 405; Emitting Co. v. Blanchard, 69 N. H. 447. (2) The trial court should not have received evidence that in the opinion of the witness the contract in question constituted a “cash sale” or that it was the custom at Caruthersville to treat such contracts as “cash sales;” nor should it have instructed the jury that the contract in question was in fact a cash sale. Kendall B. & S. Co. v. Bain, 46 Mo., App. 589; Ober v. Carson, 62 Mo. 214; So. Trust Co. v. Stanard, 44 Mo. 71; Heyworth v. Miller Co., 174 Mo. 185; Has-kins v.'Warren, 115 Mass. 514; note to Fishback v. Van Dusen, 24 Am. L. Reg. 515; Mechem on Sales, 541. (3) The lumber having pursuant to an order of delivery been delivered to plaintiff at the commencement of the action, the judgment against the defendant for its value ($9,653) or for its possession at the option of plaintiff (when he had previously elected to take it, had taken it and disposed of it) was erroneous. Baird v. Taylor, 30’ Mo. App. 580’; Hanlon v. Goodyear, 103 Mo. App. 421. (4) There was no proof of any damages to plaintiff by the taking or detention of the lumber and that part of the judgment ($500 damages) is erroneous. There was no plea of special damages in this case. Cook v. Clary, 48 Mo. App. 167; Reno v. Kingsbury, 39 Mo. App. 245; Wangler v. Franklin, 70 Mo. 659.

      C. G. Shepard, Breiver & Collins and R. P. & C, B. Williams for respondent.
    (1) In a. sale for cash on delivery the title does not pass until payment is made, and in such case if payment is refused the seller has an election of remedies; he may affirm the sale and sue for the purchase money; or he may revoke the sale and sue in replevin for the possession of the property delivered. .Toll us on-Brink-man Co. v. Central Bank, 116 Mo. 558; Johnson-Brink-man Co. v. Railroad, 52 Mo. App. 407; Jolmson-Brinkman Co. v. Railroad, 72 Mo. App. 437; Hall v. Railroad, 50 Mo. App. 179; Stranss, Prit & Co. v. Hirscli & Co., 63 Mo. App-. 95; 1 Mechem on Sales, sec. 554; Doyle v. Tnrpin, 57 Mo. App-. 84; Mugan v. Regan, 48 Mo. Appi 461; Southwestern Freight & Cotton Express Co. v. Plant, 47 Mo. 517; Bank ,v. Mill & Lumber Co.,-152 Mo. 145; Johnson v. Parrot & Barnes, 92 Mo. App. 199. (2) Where a contract for the sale of goods has been made and nothing is said as to the time of payment, the- law presumes that no credit is to be given, and that the price is to be paid concurrently with the- delivery of the goods, or the sale is termed one for cash. Under such circumstances, the payment of the price is deemed, by implication, a condition precedent to- the transfer of the title. 1 Mechem on Sales, sec. 543; Bergan v. Magnum, 9-8 Ga. 514; Paul v. Reed, 52 N. H. 136; Turner v. Moore, 58 Vt. 455; Evansville v. Erwin, 84 Ind. 457; Whitewell v. Vincent, 4 Pick. (Mass.) 449'; Reed v. Upton, 10 Pick. (Mass.) 522; Fishhack v. VanDusen, 33 Minn. 111. (3) “It is not necessarily to be inferred where a conditional bargain has been made, and a delivery has immediately taken place upon the expectation that the promised payment or security will shortly be given, that the sale ipso facto becomes absolute. There is always an implied understanding that the vendee is acting honestly, and that he takes the goods subject to the contract. It is not necessary, therefore, that the vendor shall in express terms declare that he makes the delivery conditional; it is sufficient if the intent of the parties that the delivery is conditional can be inferred from their acts and the circumstances of the case. ’ ’ 1 Mechem on Sales, sec. 551; Smith v. Denme, 6 Pick. (Mass.) 262; Fishhack v. VanDusen, 33 Minn. Ill; Leven v. Smith, 1 Denio (N. Y.) 571; Peabody v. Maguire, 79 Me. 572; Merrill Fur. Co. v. Hill, 87 Me. 17; Farlow v. Ellis, 15 Gray 229; Paul v. Reed, 52 N. H. 136; Ferguson v. Clifford, 37 N. H. 86 ; Bainbridge v. Caldwell, 4 Daria 213; Wabash Elevator v. Bank, 23 Ohio St. 311; Railroad v. Erwin, 84 Ind. 457; Buskirk Bro. v. Peck, 50 S. E. 432. (4) The clause of'the contract providing for payment at the end of a fifteen days ’ period of delivery, is not a provision for time for payment, but is a provision for time for delivery.
   GANTT, J.

This is an action of replevin brought in the circuit court of Pemiscot county, Missouri, on the 19th day of September, 1902, to recover possession of certain lumber alleged to have been wrongfully detained by the defendant. The property was seized by the sheriff under a writ of replevin, and the plaintiff gave bond for the same, and said property was delivered to the plaintiff, in whose possession it was at the time of the trial.

The answer of the defendant was a general denial, and an affirmative allegation that the property sued for was owned by the defendant, and there was a prayer for judgment for damages, for the wrongful taking thereof by the plaintiff, in the sum of $2,500. There was a verdict and judgment for the plaintiff.

The evidence established that on the 25th of January, 1902, the plaintiff Strother entered into a contract with the defendant, the McMullen Lumber Company, by which Strother sold and agreed to deliver to the defendant the out-put, during the year 1902, of the oak and ash lumber of the “Michaels” or “Lower” mill owned by Strother, the lumber to be delivered to the defendant at the lumber yard (leased to the defendant by Strother and) adjacent to the mill.' The contract provided that “said lumber shall be delivered to the second party [McMullen Lumber Company] on the lumber yard of the second party hereinafter designated. ’ ’ Among other stipulations the contract contained the following: “Upon and immediately on the delivery of any lumber by the first party [Strother] to' the second party [defendant] or its assigns, or whenever any lumber cut by the first party for the second party shall be put or placed upon said lumber yard the title to said lumber shall at once vest in said second party.” The contract further provided: “All lumber cut under this agreement shall be graded and measured by the McMullen Lumber Company through its authorized inspector, as the same is sawed and as it comes from the mill and before piling and stacking.” The contract also provided: “All lumber sawed under this contract shall be well manufactured of the usual and customary lengths among lumber men or standard lengths. Oak and ash shall be sawed from one to four inches thick as may be directed by the second party. All lumber to be so cut as to measure plump the thickness required when dried for market; ’ ’ and: ‘ ‘ All lumber shall be paid for in full by the second party or its assigns according to the above schedule of prices every fifteen days, at which time all lumber sawed and delivered as aforesaid to the second party during the preceding fifteen days shall be reported by the said McMullen Company’s inspector to their head office in Chicago and paid for by said McMullen Lumber Company by check on some responsible bank in Chicago drawn to the order of the party of the first part, except two dollars per thousand feet may be retained on all lumber so inspected and taken up by the inspector of the said McMullen Lumber Company until loading on the barge is completed, to cover estimated cost of hauling and loading. When said lumber is finally delivered and loaded on barge at Caruthersville, as above provided and reported by the McMullen Lumber Company’s inspector, the two dollars per thousand feet so deducted shall be paid by the party of the second part to the party of the first part by check on Chicago as above provided. ... In case the party of the second part should desire delivery of any part or all of the said lumber after it has been 90 days or over on stacks as above provided, then the party of the first part hereby agrees to deliver said lumber F. O. B. cars at Holland Station, Pemiscot county, Missouri, and in case of said delivery F. O. B. cars at Holland Station, the party of the second part shall have the right to deduct and detain from the two dollars per thousand feet above referred to, the sum of one dollar and twenty cents per thousand feet, and pay to the party of the first part the balance of eighty cents only.”

On the 21st day of April, 1902, the plaintiff Strother made another contract containing the same stipulations as above recited for the sale of the out-put of oak, ash and cotton-wood lumber of and from the saw mill of plaintiff known as the “Eagle Lake Mill” between the first day of June, 1902, and the first day of June, 1903.

The testimony shows that the lumber in dispute was sawed and delivered under the contracts above referred to and the same was put, stacked and piled on the leased land adjacent to the mill of the plaintiff. It was conceded by both parties that all the lumber sawed and delivered by plaintiff to the defendant prior to August 1,1902, was paid for by the defendant. On the part of the plaintiff the testimony tended to show that all of the lumber replevied was sawed after August 1, 1902, while the defendant claims that part of the lumber replevied, amounting to twenty-nine stacks and worth about twenty-five hundred dollars, was delivered prior to August 1,1902.

The testimony for the plaintiff tended further to show that by mutual consent the stipulation as to fifteen days was changed to thirty days. On or about the first of September, 1902, after the delivery of the thirty days including the month of August had become compíete, the plaintiff made a demand on the defendant for payment for lumber that had been delivered during the month of August. The defendant refused payment upon the ground that there had been a shortage in some lumber that had been previously sold and delivered by the plaintiff to the defendant. The plaintiff continued to make demand from time to time until about the 15th of September, and the defendant continued to refuse payment. Whereupon the plaintiff instituted this suit on the 19th of September, 1902, claiming that the sale was one for cash on delivery and that payment of the price was a condition precedent to the passing of the title. The circuit court construed the contract as one for cash on delivery, and instructed the jury to this effect and defendant assigns this as error. There was also testimony on the part of the plaintiff that, where lumber is sold under executory contract of sale to be delivered and manufactured, delivery is made one plank at a time 'as the lumber is sawed and that it is not practicable to make settlement for each plank as it is sawed and delivered, but that the custom and practice among lumbermen is to make settlement for a certain quantity manufactured and delivered during a certain period of time, and that where the contract provides for payment in full every fifteen days of all lumber delivered during the preceding fifteen days it is a cash sale. The defendant objected to this evidence upon the ground that the contract speaks for itself. The court overruled this objection and the defendant excepted. As showing exactly how. this question was raised, this question was asked one of plaintiff’s witnesses: “Q.I will ask you if a contract made for the cut of lumber for a year, to be measured, stacked on the yard as it comes from the saw, and to be paid for every fifteen days for the amount cut on the previous fifteen days, is that usually understood to be a cash or credit sale?” Objected to by counsel for the defendant as irrelevant, incompetent and tends to prove no issue involved in this case. Objection overruled, defendant excepts. Answer: “I understand that where they inspect the lumber for fifteen days and settle for the' lumber, it would be a cash sale.” On the part of the defendant there was evidence that the lumber had increased in value since the date it was replevied from five to six dollars per thousand feet. The jury in their verdict found the value of the property to be $9,653, and assessed plaintiff’s damages at $500: The judgment was in the alternative for the possession of the property or in lieu thereof for the sum of $9,653, and also for the sum of $500 damages.

Motions for new trial and in arrest were filed, heard and overruled, and the defendant appealed.

I. The basic proposition in this case is whether the title to the lumber in controversy vested in the defendant when the lumber was delivered on the lumber yard leased to the vendee by the vendor near the vendor’s mill, or was dependent upon the payment of the contract price therefor. If the latter, as payment was refused, replevin was maintainable. If we are to look alone at that provision in the contract which stipulates that ‘ ‘ immediately on the delivery of any lumber by the party of the first part (the plaintiff) to the second party (the defendant), or whenever any lumber cut for the-second party by the first party shall be put or placed upon said lumber yard, the title to such lumber shall at once vest in said second party,” unquestionably it should be held that the title had passed when this action was commenced. But it is insisted by the plaintiff that notwithstanding the unconditional language of the above-quoted provision of the contract it must be. read with all other provisions of the contract in order to arrive at a correct construction of what was the real intention of the parties. The defendant accedes to this suggestion; indeed, this rule may be said to have been canonized in this State in the construction both of statutes and contracts. But the contention of the defendant is that there is nothing in the other provisions of the contracts which in any manner tends to show that it was the intention of the parties to the two contracts in evidence that the lumber was to be paid for in cash on delivery. Whereas, the plaintiff insists that the circuit court was correct in holding that the contracts evidenced a sale for cash on delivery when all the provisions of the contracts are taken into consideration. If the sale was for cash on delivery the payment of the price was a condition precedent to the vesting of the title to the vendee and in such case the vendor has an election of remedies.'

In Johnson-Brinkman Co. v. Central Bank, 116 Mo. l. c. 570, this court said: “ As between vendor and purchaser, where the sale of the chattels is a cash sale, the delivery of the thing sold and the payment of the purchase money are concurrent acts, and the former may reclaim his property, if the purchase money be not paid according to the terms of the sale, either in the hands of the vendee, or of a purchaser with or without notice of the terms of the sale and that the purchase money has not been paid, provided the vendor has not waived the cash payment and has been guilty of no laches or such conduct as would estop him from so doing. A cash sale and a sale upon subsequent condition are entirely different. In the first, the payment of the purchase money and delivery of the property are concurrent acts, one and the same transaction, while the latter is a sale and delivery of the thing sold on condition subsequent, subject to be defeated by failure of the purchaser to comply with the terms of the contract of purchase. The former may be avoided by the vendor upon failure by the vendee to pay the purchase money, while the property is in his hands or in the hands of any other purchaser, unless the payment of the purchase price has been waived.”

In the case of Strauss, Pritz & Co. v. Hirsch & Co., 63 Mo. App. l. c. 102, it was said: ‘ The vesting of the title to the goods in the purchaser -may be made to depend upon his performance of some condition. And if that be the nature of the transaction, a transfer of the possession, before the performance of the condition, does not pass the title. The condition precedent which the purchaser is required to perform before acquiring the title, is the payment of the price. When that condition is express, the title does not pass before the payment o'f the price, although the possession is given the purchaser. [Ridgeway v. Kennedy, 52 Mo. 24; Parmlee v. Catherwood, 36 Mo. 479; Little v. Page, 44 Mo. 412]..... But if the possession is obtained by the buyer with the understanding that the payment of the price must follow immediately, then the delivery is only conditional, and the title does not pass until the price is paid. The ■cases seem to fully establish the principle that, where goods are sold on condition to be performed immediately, and the vendor makes an actual delivery upon the faith that the condition-will be immediately performed, and then comes with reasonable speed and demands performance of the condition and it is refused, no property in the goods passes to the vendee, and the vendor may maintain replevin. ’ ’

It is generally laid down in the books that the passing of title is one of intention, and such intention must be deduced from the contract construed in the light of the circumstances under which it was made, including the nature and character of the business and the subject-matter to which the contract relates. Looking at the two contracts in the light of the foregoing principles, it seems to us that they constitute an executory sale of all the lumber to be manufactured by the plaintiff during the year’s time at the two mills named in the contracts, to be delivered in installments during the year, such installments to be measured by the quantity manufactured during each thirty days of the time, and the price to be paid at the end of each installment delivery. On the part of the defendant, it is earnestly insisted that the payment of the price under these contracts was stipulated to be made fifteen days after the delivery, whereas the.plaintiff contends that there is nothing in the contracts to show that there was any intention whatever that the defendant should have any credit or be given time for payment, but that the contracts properly construed simply provide for time for delivery, that the lumber manufactured during the fifteen days period, afterwards mutually changed to thirty days, was to be paid for at the end of this time; that the delivery during that thirty days did not become complete until the last plank was delivered at the end of such time and that the contracts then say the payment was due, and that this is a sale for cash on delivery. The solution of this question lies in the determination of which one if these constructions we must adopt. It is manifestly not practicable in a sale of this kind for the defendant to pay and settle for each plank as it was sawed and delivered, but the only convenient and practicable way was for the parties to arrange for the delivery and payment in installments, that is to say, all lumber sawed and delivered during the prescribed number of days, to-wit, thirty days, should constitute an installment delivery and at the end of this time payment should be made for the quantity delivered during the installment period. The question of what or what is not a delivery does not seem to us to be involved in this ease. We think that the parties clearly intended that the putting of the lumber in the stacks on the lumber yard should be sufficient to pass the title so far as delivery only is concerned. When it is considered that each plank was to be inspected by the defendant’s inspector before it was placed in the stack on the lumber yard, and that the inspector of the defendant accepted the planks and caused them to be put in the stacks, we think the defendant was estopped from saying that the planks were not of the kind and the dimensions specified in the contracts. This provision was for the protection of the defendant and we no not think that the plaintiff is in a position to say that the delivery was not complete when the planks were put in the stacks, or that there was something still to be done to identify them as the property embraced within the contracts, nor do we understand that there is any such question in this case, as it is the contention of the plaintiff himself that the property was delivered as required of him and that it was of the kind and quality called for by his contracts. It is true that the contracts do not expressly use the words “cash on delivery” but we incline, after a careful examination of all the provisions of the contracts, to the opinion that' there was no extension of credit intended by the parties to these contracts for the payment of the lumber. In the absence of any provisions for credit and for further time for the payment of the purchase price, the law presumes that it was the intention that the lumber should be paid for at the end of each thirty days delivery.

The language of the contract is: “All lumber shall be paid for in full by the second party or its assigns according to the above schedule or prices every fifteen days, at which time all lumber sawed and delivered as aforesaid to the second party during the preceding fifteen days, shall be reported by the said McMullen Company’s inspector to their head office in Chicago and paid for by check on some responsible bank in Chicago drawn to order of the party of the first part.” By the very terms of this agreement, the defendant was in no default until the last stick of the lumber sawed and delivered during the thirty days, had been delivered, and then the contracts provide that thereupon the defendant shall pay for the same in full up to that time. While the contracts provided for the sale of the whole output for the year, it is apparent that it was what we denominate a severable agreement. It is manifest that the contracts do not provide for the payment at one time for the whole output, but for the payment therefor at the end of each fifteen days, and this being so the plaintiff was entitled to payment for all lumber sawed and delivered during the fifteen days. It is perfectly apparent that fifteen days timé was not given for the payment of any of the lumber so delivered, but that the output for fifteen days was in the contemplation of the parties to be delivered for that purpose, and that the payment should be concurrent with the completion of the fifteen days delivery, and the consideration to be paid therefor was several and apportioned to said delivery immediately upon its being completed, and so both parties had construed the contracts, because it is conceded that up to the first of August the. defendant had paid for each fifteen days delivery made prior to that date. Neither is there the slightest evidence that the plaintiff had waived the payment for each fifteen days delivery as made, and when the delivery for the month of August was complete, he came with reasonable speed and demanded the payment when due by the contracts. When the delivery and the payments are concurrent before the plaintiff could demand the payment he was required to first perform his own part of the contracts by making a complete delivery of all the lumber cut and sawed for the month of August. We can arrive at no other conclusion than that under these contracts the parties had stipulated for a cash sale and that the deliveries and the payments therefor were intended to be concurrent. And, as already said, when one party upon the faith of the contracts makes an actual delivery upon the faith that the payment will be made immediately, no property in the goods passes to the vendee if the buyer fails to comply with his part of the contracts, and the vendor may maintain replevin.

Having reached the conclusion from the terms of the contracts and the nature and character of the business and the subject-matter of the contracts and the total failure of any agreement for any extension of credit, that the contracts provided for a cash sale, we are confronted with two apparently conflicting provisions in the contracts, to-wit, one providing that the title shall pass to the vendee upon putting or placing of the lumber on the lumber yard, the other that the lumber shall be paid for in cash' upon delivery, and hence that the title did not vest until the payment of the purchase price therefor. Obviously it is our duty, if possible, to so reconcile these apparent conflicting stipulations as to do no injury to either of the parties to the contract, and at the same time not to make contracts for the parties to which they have not agreed. As already said, we think it is clear that the parties intended that the putting or placing of the lumber on the lumber yard should be sufficient to pass the title so far as delivery was concerned, but the other provision of the contracts, to-wit, the payment of the purchase price, still remained a condition precedent to the vesting of the title. That both parties intended that the payment for the lumber was to precede the complete passing of the title, we think is clear when all the provisions of the contract are considered together.' We think the circuit court correctly construed the contracts to provide for a cash sale and for the payment on delivery of the lumber, and as there is no pretense that the plaintiff did not comply with his part of the contract, and it is conceded that the defendant did not pay for the August delivery when demanded by the plaintiff, but insisted on holding on to the lumber without payment, giving as an excuse for his refusal the claim that there had been a failure to deliver a portion of the lumber on previous deliveries, which its own inspector had received and estimated and for which the defendant had paid, the plaintiff was justified in treating defendant’s conduct as a general refusal to carry out the contracts on its part, and plaintiff was entitled to rescind the contracts and refuse to make any further deliveries under them and to bring his replevin for the lumber which he had delivered in good faith on the expectation of receiving payment therefor as provided by his contracts.

In Bloomer v. Bernstein, L. R. 9 C. P. 588, it was held that “where there is a contract for the sale of goods to be delivered by installments, the price of each installment being payable on delivery, and the buyer does not pay for one installment under such circumstances as to give the seller reasonable ground for believing that he will be unable to pay for the installments to be delivered in future, and that he does not intend to go on with the contract, the seller is, justified in repudiating the contract.” [See, also, Fletcher v. Cole, 23 Vt. 114; Star Glass Co. v. Morey, 108 Mass. 570; Stephenson v. Cady, 117 Mass. 6; Withers v. Reynolds, 2 B. & Ad. 882.]

The case of Creelman Lumber Company v. DeLisle, 107 Mo. App. 615, is not in conflict, we think, with the conclusions which we have reached. The great question considered in that case was whether the acts and things that had been done to the property were sufficient under the contract to constitute delivery so as to pass the title. The Court of Appeals concluded, and we think rightfully, that the buyer had done all with respect to payment that he was required to do, and the evidence tended to show a sufficient delivery to pass the title.

Among the cases cited and urged upon our attention by the defendant is that of Hatch v. Standard Oil Co., 100 U. S. 124, but an examination of that case will show that the question at bar, to-wit, the effect of a cash sale and the failure on the part of the buyer to comply with the contract, was not before the court. The question came up upon an attachment against the vendors and an action of replevin by the vendees. The Merritt Bros, agreed by a contract in writing to manufacture for the Standard Oil Company, at a stipualted price, a quantity of staves and pile them on lands adjoining their mill, which was leased to the company for that purpose. The contract provided that on the staves being counted from week to week, the Merritts would be entitled to a certain percentage of the price ascertained, to-wit, seventeen dollars per thousand, and upon piling and counting the delivery should be complete and the staves were thenceforth to be absolutely and unconditionally the property of the Oil Company. Upon the delivery of all the staves contracted for, the company should pay the balance of the contract price deducting therefrom interest at ten per cent per annum on the advances of the seventeen dollars per thousand from the time paid until the staves should be received at Cleveland, Ohio. Before all the staves were furnished and the final payment made by the Oil Company,- a creditor of the Merritts caused an execution to be levied upon the staves which had been counted and piled. It appeared that the stipulated percentage, to-wit, seventeen dollars per thousand, had been fully paid. Upon this state of the facts the Supreme Court of the United States held that the title to the staves was in the Oil Company and not subject to the execution of the creditor. It is clear that that case is not in point. In that case the vendee had done all with reference to the payments for the staves that it was required to do, and it appeared further that time was given for the payment of the balance upon the completion of the whole contract. The case turned upon a question of delivery. In the case at bar, the delivery is admitted and it clearly would have been sufficient to pass the title if the payment of the price had been made in compliance with the contract.

It would serve no good purpose to review each and every authority cited by the learned and industrious counsel for the defendant in support of their position in this case, because a critical examination will show that they nearly or quite all depend upon the language of the contracts in each case. We are satisfied that the conclusion we have reached is in harmony with our own decisions, especially with that of Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558.

II. It is insisted that error was committed in permitting certain witnesses to testify that in their opinion a contract like the one at bar was a cash sale, but inasmuch as the circuit court reached the conclusion that the contract on its face was a contract for a cash sale, this evidence could not have prejudiced the defendant and is no ground for reversing the judgment.

III. It is also insisted that there was no proof of any damages to the plaintiff by the taking or detention of the lumber and so much of the judgment that allowed him five hundred dollars therefor is erroneous. On this point it is sufficient to say that in the respondent’s abstract of the record, duly served upon the appellant, the plaintiff herein distinctly stated that after the verdict and finding of the jury, and before this appeal was taken, or the motion for new trial filed, the plaintiff entered a remittitur of five hundred dollars awarded him as damages by the jury for the detention of said lumber. By section 813, Revised Statutes 1899, it is provided: “And in case the opposite party shall not concur in said abstract of record, he shall specify his objections thereto, in writing, and file the same with the clerk and serve the adverse party with a copy thereof, and thereupon the clerk of the appellate court shall forthwith issue and send an official order commanding the clerk of the trial court to send such appellate court a certified transcript of that part of the record so in dispute.” In this case no objections were filed in writing to this additional abstract on the part of the respondent, and the respondent disclaims in writing the said five hundred dollars damages. It must be held that that question is no longer before this court, and the judgment of the circuit court must be and is affirmed save and except as to the said sum of five hundred dollars which was remitted in the circuit court.

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