author: GRAVES, J.

text:
    LEON CLIPPARD v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    March 28, 1907.
    1. PLEADING: Demurrer: Motion In Arrest. Ordinarily when defendant’s demurrer to plaintiff’s petition is overruled and defendant answers over, the demurrer is not considered on appeal. But where the motion in arrest questions the sufficiency of the petition, the petition will be considered.
    2. -: Negligence: Master and Servant: No Allegation of Knowledge. A petition which sets out certain defects in the car which was derailed and injured plaintiff, a servant of defendant, and avers that the defendant was negligent in furnishing said car in such defective condition, states a cause of action, although it is nowhere specifically stated that defendant had knowledge of such defects or could have known of them by reasonable diligence, since the allegation that defendant was negligent in furnishing said defective car is equivalent to an averment of knowledge. But it would be better to specifically allege knowledge.
    3. -: -: -: Motion to Make -Specific: Waiver. Where the petition is held to be sufficient, it is unnecessary to determine or discuss the point whether or not defendant lost its right to question its sufficiency by not standing on its motion to make more specific and answering over, after the motion was overruled.
    4. -: -: -: -: Defective Car. Plaintiff, an employee of defendant in repairing its car tracks, was injured when the car was derailed, and charged the derailment to defects in the car, and the defects in these words: “That the bearings over the truck did not slide or follow the turn of the car, but were rigid and thus would cause the car to become derailed,” Held, sufficient, and defendant’s motion to make more specific was properly overruled.
    5. NEGLIGENCE: Master and Servant: Instruction: Defective Car. Where it cannot be said that an instruction which repeats a general allegation of defects in a car worked an injury to the defendant, even though the evidence bearing thereon was vague and general, the judgment will not be reversed on that account. Especially should this -be the ruling where defendant’s instructions contain the same expressions.
    6. -: -: -: Knowledge of Defective Car: Assumption of Risks. The mere fact that plaintiff knew of the defective condition of the car, which left the track and injured him, is not sufficient to bar his recovery. Unless the danger was so glaring as to threaten immediate injury, or such that a person of ordinary prudence would not have used the car to ride upon, then the fact that plaintiff knew of its defective condition and remained in defendant’s service thereafter will not bar recovery by him for the injury. Besides, in this case defendant did not plead assumption of risks.
    7. -: Hidden Defects: Inspection: Curing Refusal of Instruction. ETror in the refusal of an instruction which tells the jury that “defendant was not bound to know of .hidden or other defects in said car that could not be discovered by the exercise of reasonable care in examining the same,” peculiarly applicable to the facts of the case, is not cured by the giving of another instruction which goes only to the point that if the ear was in good repair at the time it was turned out for work on the day of the accident and thereafter became out of repair then defendant is not liable unless it knew of said ear becoming out of repair, etc. The refusal of the instruction as to hidden defects took from the jury one of the defendant’s substantial defenses.
    Appeal from St. Louis City Circuit Court. — Row. Jas. B. Kinealy, Judge.
    Reversed and remanded.

      George T. Priest for appellant; Boyle & Priest and George W. Easley of counsel.
    (1) The court erred in overruling defendant’s demurrer to the sufficiency of plaintiff’s petition. In an action by a servant against the master for negligence in furnishing improper appliances for the servant’s use in his work, whereby he was injured, the petition must charge that the master either knew, or by the exercise of ordinary care could have known, of the defect,- or the petition must contain averments equivalent thereto. Mueller v. Shoe Co., 109 Mo. App. 506; Current v. Railroad, 86 Mo. 62; Crane v. Railroad, 87 Mo. 588; Johnson v. Railroad, 96 Mo. 340; Fisher v. Lead Co., 156 Mo. 479; Duerst v. Stamp. C'o., 163 Mo. 607. (2) The court erred in overruling defendant’s motion to make the petition more definite and certain. Defendant does not waive its objection by answering to the merits. Ebens' v. Railroad, 72 Mo. 212; Sommers v. Railroad, 83 S. W. 268; Rnebsam v. Railroad, 83 S. W. 984; Sidway v. Land Co., 163 Mo. 342; Watkins v. Donnelly, 88 Mo. 322; Allen v. Railroad, 183 Mo. 433; Tipton Power Co. v. Newcomer, 158 Tnd. 348. It is impossible to understand whether plaintiff means to charge that all the bearings were defective, or that some were defective, or that only one was defective, and it is impossible to understand whether the bearings referred to were those which coupled the body of the car with the trucks, and, if these were the ones intended, whether it was the front or rear tracks that were meant, we do not know. Further, there are hearings on the axles of the car, and two hearings to each axle and eight axles on the car, and whether those were the ones intended,- and, if so, which ones or all, we cannot tell from the petition. The motors on the car connected to the axles contained hearings, and whether or not plaintiff intended these, and, if so, whether on the rear- or front motor, we cannot tell. Defendant is entitled within reason to know just what plaintiff intends by his petition, instead of having him lie in ambush behind some concealed charge. (3) The court erred in giving instruction 1. Instructions must be based upon the pleadings and the evidence and must confine a recovery to the cause of action stated in the-petition. If the instruction is broader than the pleading and if it allows plaintiff to recover on a cause of action not alleged iu the petition, it is an error. Waldhier v. Rail- • road, 71 Mo. 514; Price v. Railroad, 72 Mo. 414; Ely v. Railroad, 77 Mo. 34; Aurent v. Railroad, 86 Mo. 66; McManamee v. Railroad, 135 Mo. 440'; Feary v. Railroad, 162 Mo. 75; Allen v. Railroad, 183 Mo. 440. Instruction 1 is open to two objections: First, that it is broader than the petition and allows plaintiff to recover upon a different cause of action than that alleged in the petition. McManamee v. Railroad, 135 Mo. 447; Waldheir v. Railroad, 71 Mo. 515. The instruction is fatal for the further reason that it fails to submit to the jury the effect of plaintiff’s knowledge of the defective condition of the wheel} and it fails to submit to the jury whether the defect was “glaring” or not. The instruction is an independent one and was intended to and does cover the whole case. (4) The court erred, in giving plaintiff’s instruction 3. The phraseology of this instruction is entirely too strong and can do nothing but mislead the jury. The phrase, “and its said defective condition was so glaring as to threaten immediate injury,” is misleading. (5) The court erred in refusing to give defendant’s instruction A4 offered. This instruction clearly states the law and clearly states one of defendant’s defenses. If the defect in the car was of such condition that it was impossible for defendant, through the exercise of ordinary care, to have discovered, then it is not liable —for it is not liable to a servant without it fails in the exercise of ordinary care; consequently, if the defect cannot be discovered by the exercise of ordinary care, defendant has discharged that degree of care which it owes the plaintiff and therefore is not liable.

      E. D. Hayes and A. R. Taylor for respondent.
    (1) Appellant’s first ground of error urged in his brief is that for a failure to allege notice of the defective condition of the bearings, to defendant, the trial court should have sustained its demurrer. There are quite a number of answers, to this complaint. The demurrer was not well taken, as the trial court correctly held. The petition contains an explicit statement of the facts constituting plaintiff’s cause of action. It not only shows the defective condition of the car, but goes further and shows the facts causing the defective condition. The master in this case did not furnish the bearings of the car as an appliance to work with, but furnished the car as the appliance. Again, the contention is that the petition must allege that the master knew, or, in the exercise of ordinary care, would have known, of the defective condition, or an equivalent averment. The equivalent averment is in the petition: “And the plaintiff avers that defendant was negligent in furnishing said car for said work in such defective condition. ’ ’ The defective condition was fully described. Crane v. Railroad, 87 Mo. 588; Condan v. Railroad, 78 Mo. 572; Hall v. Railroad, 74 Mo. 2S8; Gurley v. Railroad, 93 Mo. 451; Johnson v. Railroad, 96 Mo. 345 ; Young v. Shiclde, 103 Mo. 328; Cobb v. Railroad, 149 Mo. 145. (2) The petition was specific. ■ Counsel fails to see or to consider the specific averment as to the cause of the defective condition of the car. If the petition did not aver, as it does aver, the specific cause of the car’s had habit of jumping the track, it would have been good, as good as the code requires. Sec. 2055, R. S. 1899. (3) There was no such question as assumption of risk in this case. Def endant did not plead it or ask to have it submitted as an issue. At the trial neither party seemed to think that such an issue was alive in the case, but both seemed to bow to the law of the decisions, to the effect that a servant does not assume a peril which arises by reason of the master’s negligence. Blanton v. Dold, 109 Mo. 75; Swadley v. Railroad, 118 Mo. 278; Settle v. Railroad, 127 Mo. 343; Pauck v. Dressed Beef Co., 159 Mo. 477; Curtis v. McNair, 173 Mo. 274; Cole v.' Railroad, 183 Mo. 94.
   GRAVES, J.

Action for personal injuries. Verdict and judgment went for plaintiff in the sum of $6,235, and defendant appeals.

At the institution of the suit plaintiff was a minor, ■ and brought suit through L. J. Grimsley, his curator, but before trial he reached his majority and further prosecuted suit in his own ñamé.

By petition it is charged, that defendant is a corporation and as such used and operated a street railway and a certain car and appliances in the petition mentioned; that on October 29, 1901, plaintiff was in the service of defendant, as a laborer, in repairing its tracks; that he was on one of defendant’s cars going west On Chouteau avenue, when said car left the track and plaintiff’s left leg and foot were crushed between said ear' and an upright pole standing some sixteen or eighteen inches from the track, and plaintiff thereby permanently crippled and disabled. The car was used for the purpose of transporting the workmen and material from place to place on defendant’s railway. The alleged negligence of defendant is stated in this language :

“And plaintiff avers that said car was so caused to leave said track and injure the plaintiff by reason of the defective and insecure condition of said car and appliances. That said ear and its appliances and bearings were out of order and defective, and such condition of said car would cause it to leave the track. That the bearing's over the truck did not slide or follow the turn of the car, but were rigid and thus would cause the car to become derailed. And plaintiff avers that said defective condition of said car and its appliances was the direct cause of said car’s leaving the track and injuring the plaintiff as aforesaid. And the plaintiff avers that the defendant was negligent in furnishing said car in such defective condition.”

The defendant first demurred, but such demurrer was overruled. Defendant then filed motion to make petition more specific and definite which was likewise overruled. Defendant then answered, first by a general denial, and further by special plea of contributory negligence, couched in this language :

“Defendant for further answer to plaintiff’s petition, avers that by its rules, regulations and orders adopted, promulgated and given by defendant to plaintiff and other employees of defendant for their safety and protection, such employees and servants of defendant were forbidden to ride on defendant’s cars with their legs and feet swinging over and from the sides of said cars, and that whatever injuries plaintiff may have sustained, were caused by his own negligence in riding on one of defendant’s cars with his feet and legs outside the body or side of said car in violation of defendant’s said rules, orders and regulations.

“And having fully answered, defendant prays to be hence dismissed with its costs.”

Reply was a general denial.

The errors assigned are: (1), The overruling of the demurrer; (2), the overruling of the motion to make petition more specific and definite; (3), the overruling of the demurrer to plaintiff’s evidence and to all the evidence upon the close of the case; (4), the giving of instructions numbered 1, 2, 3, 4 and 5 for plaintiff; (5), the refusal to give instruction numbered A-l, A-2, A-3, A-4 and A-5 asked for defendant; (6), the admission of incompetent evidence over the objection of defendant.

Objection was made to the introduction of any evidence under the petition for the reason that the petition failed to state facts sufficient to constitute a cause of action, which objection was. overruled and exception saved. The same point is preserved by motion in arrest of judgment.

Points urged will be considered in connection with a further statement of the testimony as introduced and applicable to the several points discussed in the course of the opinion.

I. The first point made by defendant is that there was error upon the part of the trial court in overruling the demurrer to the petition. The defendant answered, but the answer in no way aids the petition in respect to the alleged defect now insisted upon by defendant. Ordinarily, where a demurrer is overruled, and the defendant pleads by way of answer, rather than stand upon the demurrer, we do not consider the demurrer, and would not consider the point here raised, but for the fact there is a motion in arrest of judgment'which questions the sufficiency of the petition. So that in this case we consider the sufficiency of the petition, upon the challenge thereto raised by the motion in arrest of judgment, rather than upon the demurrer. Defendant challenges the sufficiency of the petition in brief in this language:

“The petition contains no averment that the defendant had any knowledge of the defects complained of, or conld have known of the defects hy reasonable diligence, or any averments which are equivalent to the same.”

The petition does not contain such specific allegations. The petition does contain this allegation: “And the plaintiff avers that the defendant was negligent in furnishing said car for said work in said defective condition. ’ ’

The defective condition had been previously described in the petition. The petition is not well worded for a case of this character, to say the least of it. Defendant admits the allegations of the petition to be sufficient, if this case was a case where “the servant brings his action against the master because the master furnished him with the tool or instrument, which is defective, inherently defective and unfit for the purpose for which it is intended,” but urges that the rule does not hold good, and the petition would be bad, in cases “where a servant grounds his petition upon injuries received during the use of appliances and instruments furnished him by the master, which were originally perfect, and free from defect and suited • to the use or purpose for which they were intended, ' but having become unsuited through use and ordinary wear and tear, and thus are liable to injure the servant. ’ ’

In cases of this character, defendant urges that “the petition must contain the averment or its equivalent that the master could have known of the defect through the exercise of ordinary care, or being informed of it has failed to rectify it.”

The evidence shows that plaintiff had used this particular car for about six weeks, and that it worked all right at first, but during the last week or ten days, it jumped the track at different times and places, when making a curve. But to test the petition we must look to the petition and not the evidence. Does the petition state a cause of action? We think so. The petition does not charge a prior use of the car by plaintiff, and in so far as appears from the petition, this was the original furnishing of the alleged defective appliance. What bearing the question of the evidence in the cause will have is not for consideration at this point. This alleged defect in thé petition is hot a new question in this State. It would have been much better to have had the express averments, as contended for by defendant, in the petition, but we have held that the language used in this petition is equivalent averments.

In Hall v. Railroad, 74 Mo. l. c. 302, we said:

“The proposition that the petition is defective because it is not therein alleged that defendant had knowledge that the iron rail was lying on or so near to the track as to be dangerous, is untenable. It is alleged that defendant negligently and carelessly permitted it to remain there, and this was not true, if defendant did not know, or, by the due and proper discharge of its duty to keep the track clear of obstructions, would not have ascertained, that the rail was there. In the cases of Serrot v. Omaha, 1 Dill. Cir. Ct. Rep. 312, and Bowie v. Kansas City, 51 Mo. 456, it was decided that petitions, • substantially the same as this with respect to the omission of the allegations of knowledge on the part of defendant, were good. Nor is there anything in Price v. Railroad, 72 Mo. 414, in conflict with those cases.”

Again, in Crane v. Railroad, 87 Mo. l. c. 594, it was said:

“It is further insisted that the petition is insufficient in that it does not aver that defendant either knew, or might, by the.exercise of ordinary care, have known, the defective and dangerous construction of the car that plaintiff was required to couple. If the petition contains no averment equivalent to the one above noted, the objection made to its sufficiency would be well taken. That it does contain equivalent averments, we think is clear. The petition alleges that the cause of the injury received by plaintiff without his fault, was the result of carelessness and negligence of defendant in failing and neglecting to provide him with reasonably safe and secure appliances with which to perform duties of his employment, and then proceeds to state wherein the car he was required to couple was defective. This form of pleading is sufficient, and has the sanction of Bliss on Code Pleading, where, in section 212, in treating* of the distinction in pleading fraud and negligence, it is said: ‘To charge fraud, it is not enough to say that the party fraudulently procured, or did this or that, or committed fraud. They are but conclusions of law; the facts constituting fraud must be stated. . - . . On the other hand, a general allegation of negligence is allowed; the negligence is the ultimate fact to be pleaded, and is not a legal conclusion, as that “defendant by,” etc., did run and manage one of their cars in such a gross and negligent manner that, etc.; or, the defendant “while running their locomotive with, ’ ’ etc., ‘ ‘ negligently struck, ’ ’ etc. The law draws the conclusion in both cases, yet we can see that the negligence possesses more the elements of facts than does fraud.’ See, also*, Nash’s Plead, and Prao., p. 514, where, it will be seen, that the petition in this case comes up to the requirements in the form there laid down in this class of cases.”

Norton, J., in Johnson v. Railroad, 96 Mo. l. c. 345, says:

“The specific objection urged to the above petition is, that it does not allege that defendant either knew, or might, by the exercise of ordinary care, have known, that said hammer was not reasonably safe for the purposes for which it was to be used. In the case of Crane v. Railroad, 87 Mo. 588, it is held that in action by a servant against his master for negligence in furnishing improper or unsafe appliances for the servant’s use in his work, the petition must allege that the master either knew, or might, by the exercise of ordinary care, have known, of the dangerous and defective construction of the appliance, or it must contain an equivalent averment, and that an allegation that the master negligently furnished an appliance which was defective and unsafe is an equivalent averment, and sufficient. Under this ruling the objection to the sufficiency of the petition, based on the ground stated, is not well taken, as it is therein averred that the unsafe hammer was negligently furnished plaintiff by defendant. ’ ’

And later the Crane and Johnson cases, supra, were approved in Young v. Shickle, H. & H. Iron Co., 103 Mo. l. c. 328, in this language:

“It is the well-settled law of this court that the plaintiff need not allege that he was without fault, that contributory negligence is a matter of defense. [Crane v. Railroad, 87 Mo. 588.] It was also held in that case that the plaintiff need not aver that he-had no knowledge of the defective character of the machinery; and that an allegation that the defendant negligently furnished an appliance which was defective and unsafe was equivalent to a statement that the master knew, or might have known by use of ordinary care, of the dangerous and defective character of the appliance. To the same effect is the case of Johnson v. Railroad, 96 Mo. 340.”

See, also, recent case of Bellamy v. Whitsell, (Mo. App.), 100 S. W. 514, opinion just handed down by Johnson, J., of the Kansas City Court of Appeals.

"We therefore conclude-, that whilst this petition is not just what it ought to be, yet it contains averments sufficient to state a cause of action and the demurrer and motion in arrest were properly overruled, in so-'far as this point is concerned.

II. The second contention is that there was error in overruling defendant’s motion to make the petition more specific. We do not think this point is tenable. In the statement we have set out all of that portion of the petition necessary for the consideration of the proposition. We take it that the specific defect intended to be charged in this petition is couched in this language taken therefrom: “That the bearings over the truck did not slide or follow the turn of the car, but were rigid and thus would cause the car to become derailed.”

There is a loose general charge first preceding this, but as best we can construe this petition, the gist of the charge contained therein is in the language just quoted, and this is sufficiently definite to fully apprise the defendant of the issues to be met.

Having reached the conclusion that the petition is sufficiently definite, it is unnecessary to discuss the further question, as to whether or not defendant has .lost the right to question the sufficiency of the petition by not standing upon its motion and answering, after the motion was overruled.

III. Instruction numbered 1 given for plaintiff is criticised. This instruction reads:

“If the jury find from the evidence that on the 29th day of October, 1901, the defendant was operating the railway and car mentioned in the evidence; and if the jury find from the evidence that on said day the plaintiff was in the service of the defendant as a laborer, and that on said day he was riding upon the car mentioned in the evidence, and that he was in the discharge of the duty of his employment whilst so riding upon said ear; and, if the jury find from the evidence, that whilst the plaintiff was so riding upon said ' ear in the discharge of the duties of said employment, said car left the track on which it was moving and thereby the plaintiff’s left foot and leg were crushed between said car and a pole, and injured; and, if the jury find from the evidence that said car and its appliances and, bearings ivere out of order and defective, and that the bearings over one of the trucks of said car did not slide and were rigid, and that thereby said car was caused to so leave said track and so injure the plaintiff; and .if the jury find from the evidence that said defective conditions of said car were known to the defendant or its agents having charge of keeping said car in repair, and reasonably safe and suitable for the use for which defendant was applying it, or by the exercise of ordinary care would have been so known in time to have repaired same, by the exercise of ordinary care before plaintiff’s said injury, and neglected and failed to do so and thereby the plaintiff was caused to sustain said injury; and if the jury find from the evidence that the plaintiff was in the exercise of ordinary care at the time of his injury, then he is entitled to recover.”

■We have italicized the portion which is principally urged as being erroneous. The only possible defect in the instruction would be in the words, “that said car and its appliances and bearings were out of order and defective.”

The preponderance of the evidence tends to show that this car had been leaving the track in making curves for some days prior to this accident and that it left it because of a bolt in the bearing dropping down and thereby preventing the truck of the car from resuming its natural position under the car after the car reached the straight track. These bearings consisted of two steel plates, one above and one below, the one above fastened by two bolts to the body of the car and the one below by two bolts to the axle. The bolts were counter sunk, that is to say, were so placed in the steel plates that the head of the bolt would be even with or a little deeper than the face of the plate, so that the two plates would work without interference from these bolt heads. The evidence strongly tends to show that at previous times the car left the track by one or more of these bolts becoming loose so that the heads thereof would fall below the surface of the steel plate, thus preventing the truck from resuming its natural position after the curve was passed and straight track reached, and in this way forcing the wheels off the track. Further than this the reason for the car leaving the track the night of the injury is not shown except by witness Booth, who knew of the car leaving the track before, and says the bearings were too low, as well as the loose bolts. There is some little evidence of a loose wheel, but it is not explained just how a loose wheel would cause the truck to leave the track.

It might have been better had the plaintiff eliminated the language hereinabove last quoted, from the instruction, thereby confining the instruction to. the condition of the bearings, yet under the evidence in this record, we hardly think the instruction in the form given worked injury to the defendant. Nor is it subject to the criticism of being broader than the pleadings.

Further, we suggest that defendant’s instructions, both those given and those refused, contain, in effect, if not in exact words, the same alleged vicious expression, so that if we could find that the trial court was lead into error, the responsibility rests as much with defendant as with plaintiff.

IV. Plaintiff’s instruction numbered 3 is. also the subject of criticism. This instruction is as follows:

“If the jury find from the evidence that the car mentioned was in a defective condition as set forth or mentioned in the other instructions, and if the jury find from the evidence that the plaintiff knew of said defective condition of said car before his said injury, yet unless the jury find from the evidence that the danger from said car and its defective condition was so glaring as to threaten immediate injury, or such that a person of ordinary prudence would not have used it to rid© upon, then the fact that the plaintiff knew of such defective condition of said car and remained in the service of the defendant thereafter, will not of itself preclude a recovery in this case.”

We think the language of this instruction finds full support in the case of Hamman v. Cen. Coal & Coke Co., 156 Mo. 232. The writer was of counsel for appellant in that case, and tried hard to get a different expression from the court, but by a majority of the Court in Banc, the divisional opinion of Burgess, J., was made the opinion of the court. In that case, Burgess, J., said:

“The evidence was clear that deceased was an experienced miner, and that he knew of the condition of the roof, but it does not necessarily follow that it was his duty to abandon his work, if it was true, that defendant had been requested by him to furnish props for the room, had promised to do so, and failed, unless the roof was so glaringly defective and unsafe that a man of ordinary prudence and caution would not have worked in the room, or unless it was so dangerous as to threaten immediate injury. Mere knowledge that the roof was unsafe, ‘and that risk was incurred in working under it’ was not, as a matter of law, sufficient to defeat the plaintiff’s action, if the danger was not such as to threaten immediate injury, or if it was reasonable to suppose the room ‘might be safely used by the exercise of care.’ [Smith v. Little Pittsburg Coal Co., 75 Mo. App. 177; Stoddard v. Railroad, 65 Mo. 514; Devlin v. Railroad, 87 Mo. 545; Huhn v. Railroad, 92 Mo. 440; Hamilton v. Mining Co., 108 Mo. 364; Holloran v. I. & F. Co., 133 Mo. 470.] ”

. The cases cited by Judge Burgess sustain his views, and some of them are where repairs had been promised and others where there had been no such promise.

In sections 301 et seq., page 7301, vol. I, of Labatt on Master and Servant, the author takes occasion to analyze onr cases upon the question of the servant’s right to recover after being fully cognizant of defects in appliances being used by him, and in a way criticises the later expressions of this court, to the extent of pointing out that our views, as the author sees it, are largely out of line with the decisions of other States. However, this analysis of the cases upholds the doctrine announced in this instruction.

It may be that our court has gone further upon this question than many courts, but we see no reason now for overturning the long line of decisions upon the question.

In passing it might be well to say that neither contributory negeligence by the usual plea nor assumption of risk was pleaded in the case at bar.

V. As a fifth assignment of error, the refusal of the court to give defendant’s instruction A-4, is charged. That instruction follows:

“The jury are instructed that defendant was not an insurer of plaintiff’s safety and only owed to him the duty of exercising reasonable care and precaution to provide a reasonably safe car, equipped with reasonably safe appliances and bearings, upon and about which to work; that defendant was not bound to know of hidden or other defects in said car, its bearings or appliances, that could not be discovered by the exercise of reasonable care in examining the same.

“And you are further instructed that if you find from the evidence that defendant through its servants or agents exercised reasonable care in examining said car, its bearings and appliances, and that such examination failed to disclose any defects in said car, its appliances or bearings, and that defendant did not know and had no reason to anticipate that there were defects in said car, its bearings or appliances, then your verdict will be for the defendant, and this is true, even though you may further believe that there were defects in said car, its appliances or bearings, and that snch defects caused the wheels or trucks of said car to leave the track, and that plaintiff was thereby injured.”

To properly pass upon this instruction it will be necessary to summarize the evidence bearing upon the question. Plaintiff worked at nights. The accident occurred the night of October 29, 1901. There is evidence upon the part of defendant that this car was thoroughly overhauled and repaired September 7, 1901; that the car was inspected each morning by the oar inspector, after its return from the night’s work; that this car was repaired on the 29th of October, a new axle and bearings being put in in lieu of an axle which was split; that after its repair on the 29th and before it was sent out on the night of plaintiff’s injury, it was loaded and tested in the yards, where there was nothing but switches and curves, and that it worked properly; that no defects or trouble with the car was then discovered by the inspector; that cars frequently left the track for different causes, and many times the cause of the leaving could not be discovered.

Counsel for plaintiff practically concedes the correctness of' this refused instruction, but says that it was covered by instruction D-3. This instruction is in words, as follows:

“If the jury find from the evidence that defendant’s car, its appliances and bearings, were reasonably safe and secure on the morning of the day of plaintiff’s injury and that thereafter on said day while being used by defendant about the work in which plaintiff was engaged, if you find it was so used, said car, its appliances or. bearings became out of repair, thereby causing the wheels or trucks of said car to leave the track, and that plaintiff was thereby injured, still plaintiff cannot recover in this action unless you further find from .the evidence that defendant Imew of said car, its appliances, or bearings so becoming out of repair, or by the exercise of reasonable care might have known thereof in time to have repaired the same before plaintiff sustained injury.”

Under the facts in this case there can be no doubt that instruction A-4 is a proper declaration of law. Nor do we think it covered and its refusal justified by the giving of instruction D-3.

Instruction D-3 contains no idea of the proper declaration of law as contained in the first paragraph or part of A-4, and really goes only to the point that if the car was in good repair at the time it was turned out for work on October 29th, and thereafter became out of repair, then the defendant was not liable unless it knew of said car becoming out of repair, or by the exercise of ordinary care might have known such fact prior to the injury. This instruction refers solely to the day and night of October 29th, and has no reference to latent or hidden defects. But an examination of the two instructions shows that they do not cover the same proposition and were not so intended. So far we have gone the limit in sustaining the contentions of plaintiff, but the refusal of instruction Ar4 cannot be excused on any reasonable theory. It is not only good abstract law, but it is peculiarly applicable to the facts of the case, as presented by defendant’s witnesses. The refusal took from the jury one of the substantial defenses to the case, i. e., that even if there was a defect in the car that night, it was so hidden that it was not discernible, upon close inspection. Again, no other instruction measured the duty of the defendant to the plaintiff in the matter of furnishing the ear, as to its character. The refusal of this instruction was gross error.

For the reason last assigned the judgment in this cause is reversed and the cause remanded for retrial in accordance with the views herein expressed.

Valliant, P. J., and Lamm, J., concur; Woodson, J., not sitting.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    CITY OF ST. LOUIS v. G. H. WRIGHT CONTRACTING COMPANY, and CITY TRUST, SAFE DEPOSIT & SURETY COMPANY OF PHILADELPHIA, Appellants.
    Division One,
    March 28, 1907.
    1. EXPRESS TRUST: Street Improvements: Suit by City for Breach of Contract. A city cannot, as the trustee of an express trust or otherwise, unless specially so authorized hy the contract, maintain a suit, for the use and benefit of the owners. of lots abutting on a street, against the contractor and his bondsmen, for damages to the property-owners caused by a breach of the contract to improve the street. And where the contractor abandoned his contract to pave the street, and the improvement, upon a reletting thereof, cost the abutting property-owners, in the way of special taxbills, the amount sued for in excess of the gross sum fixed by the broken contract, a clause in the bond providing for a faithful performance of the contract according to its terms does not make the city the trustee of an express trust with authority in it to sue for the use and benefit of the property-owners for the additional cost of the improvement in excess of the sum fixed by the broken contract.
    2. -: -: -: Third Parties: Not Named. Even if a city and a contractor and his bondsmen could make a contract to pave a street for the use of third parties, and those parties the owners of property abutting on the street to be improved, yet where the third parties are not named in the contract, they are to be ascertained by the intention of the contract, and that intention, where the contract is in writing, is to be gathered from the writing itself; and the third parties not being named in the contract made by the city to pave a street, it must be held that the third party is the public, and not the abutting property-owners who are assessed with special taxbiJls to pay the cost of the improvement, for the street belongs to the public, and the improvement is for a public use, and under the • Constitution the tax could not be imposed for a private way or a private use. And so, such a contract does not authorize the city to sue, for the use and benefit of the abutting property-owners, for a breach thereof, or for any additional money they have to pay for the improvement because of such breach.

      3. -: -: -: Charter Provisions. There is no express or implied authority to be found in the charter of the city of St. Louis to improve streets for the benefit of the adjoining lots, or for the benefit of their owners. Such* a provision, if it existed, would be to authorize the city to exercise the taxing power for private purposes, and would therefore be invalid, because the exercise of the taxing power for that purpose is expressly prohibited by the Constitution.
    4. -: -: -: Where Third Parties Are Named: Ex-pressio Unius, etc. The bond provided that the contractor “shall faithfully and properly perform the foregoing contract according to all the terms thereof and shall pay to the proper parties all amounts due for materials and labor used and employed in the performance thereof;” and that the bond “may be sued on at the instance of any material man, laboring man or mechanic, in the name of the city of St. Louis, to the use of such material man, laboring man, or mechanic, for any breach thereof.” Held, that the principle of ecspressio unius eatclusio alt-erius clearly applies, and the bond by expressly stating that the city could sue for the use of material men, laboring men and mechanics, clearly excluded the right of the city to sue for the use of abutting property-owners.
    5. ———: -: -: Power in City. In the absence of any express power in a city to make contracts for indemnifying its citizens from loss due to a breach of a contract with the city for the improvement of a street, the city cannot make a contract authorizing it to maintain a suit for the use and benefit of abutting property-owners against the contractor and Ms bondsmen for a failure to perform the contract.
    6. -: -: Intended Benefit. Whatever benefit may accrue to abutting property-owners as a result of a street improvement is purely an incident of the improvement, and not an object intentionally sought to be obtained by the contract which was made for the improvement. The primary purpose is not to enhance the value of property; that is an intended purpose, otherwise the validity of taxbills would rest exclusively upon benefits. But the enhanced value is a fund (as it were) which is first assigned to the contractor to pay the taxbills and does not become the property-owner’s until he pays the taxbills. But the city owes no duty to the property-owner to increase the value of his property; if that is done, it is an incidental result.
    7. -: -: -: City Agent of Property-Owners. The fact that the city is required in letting a contract for a street improvement to let it to the lowest bidder, does not constitute it the agent of the.owners of property abutting on the street to sue for damages to them for a breach of the contract. The city does not act for them in letting the contract. •
    8. -: ——: -: —:-: Third Parties. Where third parties have been permitted to recover upon a contract entered into for their benefit, said third parties had either adopted the contract or complied with its provisions relating to them, or the debt or duty which was owing to the third party had passed to or vested in the obligee of the contract before the suit was brought. Where the owners of property abutting on the street, for the improvement of which the city entered into contract with defendants, never adopted the contract, never performed any duty imposed by it upon them, and the city has not turned over to the defendants anything of value to the property-owners as a consideration for the contract, the city cannot sue for their use and benefit for a breach of the contract.
    Appeal from St. Louis City Circuit Court. — Hon. Horatio D. Woiod, Judge.
    Reversed.

      Seddon & Holland and Fidelio G. Sharp for appellants.
    (1) The petition fails to state a cause of action in this: that the city sues as the trustee of an express trust for third persons, abutting lot-owners, for the breach of a bond entirely between the city and the défendants, to which the third persons are not parties, (a) Where an action is brought by a trustee for the benefit of third persons, they are the real parties, and the trustee has no. individual interest in- the action unless he is a co-beneficiary, expressly or of the same class, and then he has no greater or other interest than the other members of the- class. Natl. Bk. v. Ward, 100 U. S. 195; Lewis v. Land Co., 124 Mo. 672; Rogers v. Gosnell, 58 Mo. 589; School v. Lewis, 147 Mo. 580; Crone v. Strude, 156 Mo. 262; Ammonet v. Montague, 75 Mo. 43; St. Louis v. Yon Phul, 133 Mo. 561. (b) The lot-owners not being mentioned as parties to the contract, can only become so by implication. There is no necessary implication to bind the defendant Trust Company, which is a mere surety. Myers v. Parks, 6 Ohio St. 501; Harrisonville v. Porter, 76 Mo. 356; State v. Boon, 44 Mo. 354; State v. Johnson, 55 Mo. 80. (c) The city in making the contract was not acting as agent of the lot-owners or any third persons. Thornton v. Clinton, 148 Mo. 663; Sweeny v. Kansas, 50 Mo. App. 265; Steffen v. City, 135 Mo. 144; Heft v. Payne, 97 Cal. 108; Scott v. Springfield, 81 Mo. App. 312. (d) The city in making the contract was not acting as the trustee of an express trust for the lot-owners or others. Burton v. Larkin, 36 Kan. 246; Wright v. Terry, 23 Fla. 160; Smith v. Brown, 68 N. T. 355; Porter v. Woods, 138 Mo. 539; Street v. G.oodale, 77 Mo. App. 318; Devers v. Howard, 144 Mo. 671; State v. Loomis, 88 Mo: App: 5001; Anderson v. Fitzgerald, 21 Fed. 294; Barbour v. Railroad, 49 La. Ann. 1608; Loeber v. Railroad, 41 La. Ann. 1157; City v. Westar, 35 Pa. St. 427; Emery v. Bradford, 29 C'al. 83; Himmelman v. Spargel, 39 Cal. 389'; City v. P'ecot, 38 Mo: 125; Howsmcn v. Trenton, 79' Mo. 304; Berker v. Water works Co., 79 Iowa 419'. (2) The petition fails to state a cause of action because it does not show that any valid taxbills were ever issued or that any liens were ever created. Reed v. Bott, 1001 Mo. 62; Burnham v. Boyd, 167 Mo. 185; Vieth v. Planet, 64 Mo. App. 210; St. Louis v. De Noue, 44 Mo. 137; Kansas v. Surety Co., 71 Mo. App. 315; Mallinckrodt v. Nemnich, 169 Mo. 507; North St. Louis v. Obert, 169 Mo: 507; Hoester v. Sammelman, 101 Mo. 619; Wilson v. Polk County, 112 Mo. 126. (3) The petition is defective in this: that it fails to set out the names of the third parties. In making a contract for the benefit of another, he may be either named or may be identified by description as one of a class. But this is not true of an action at law. The third party is the real plaintiff, and has a right to control the proceeding in court. The lot-owners could not have sued directly describing themselves as “lot-owners,” against Wright Construction Company. The statement of the name of the real plaintiff in an action is of the essence of the cause of action, and a failure to state his name is a failure to state a cause of action.

      Charles W. Bates and Benjamin H. Charles for respondent.
    (1) The law itself, i. e.: the charter of the city, requires the giving of a bond, not for merely nominal damages, but for a substantial thing, namely, compliance with the provisions of the contract. “No contract shall be made .... without a bond for its faithful performance.” Chart., art. 6, sec. 27.. (2) While the power to assess the cost of a public improvement upon private property is referable to the taxing power, its foundation rests, nevertheless, in the special benefit resulting to such property from the improvement. Prior v. Construction Co., 170 Mo. 3391; Meier v. St. Louis, 180 Mo. 391; Barber v. French, 158 Mo. 545, 181 U. S. 324. A special assessment is a tax on the benefit rather than on the property. Newby v. Platte Co., 25 Mo. 272; Garrett v. St. Louis, 25 Mo. 513. (3) The city, in the matter of street improvements, is, however, not hostile to the property-owner, as defendants contend, (a) “The board of public improvements, in the discharge of its duties, in reference to street improvements, is as much the agent of the property owner as of the city.” Barber Asphalt Pav. Co. v. Hezel, 76 Mo. App. 152, affirmed, 155 Mo. 391. (b) It is its “duty to see to1 it that neither1 the property-owner nor the city is cheated or wronged . . . . by its lettings and contracts.” Barber Asphalt Pav. Co. v. Hezel, 76 Mo. App. 152, affirmed, 155 Mo. 391; St. Louis v. Yon Phul, 133 Mo. 567. (c) City officials are, with respect to street improvements, the representatives of the property-owner. Bank v. Woes-ten, 147 Mo. 481; Barber, etc., Co. v. Hezel, 76 Mo. App. 152; St. Louis v. Yon Phul, 133 Mo. 567; Bond v. Newark, 19 N. J. Eq. 383; Eno v. New York, 68 N. Y. 219; Lake v. Williamsburg, 4 Denio 523. They are “executing a statutory power of attorney from the property-owners.” Louisville v. Ky. & I. Bridge Co., 70 S. W. 627. (d) The city is the trustee of an express trust. R. S. 1899', sec. 541; Snider v. Express, 77 Mo. 526; Ellis v. Harrison, 104 Mo. 277. (4) Defendants agreed with the city to perform the work. The question who was to be benefited thereby is therefore really immaterial, (a) But defendants knew the law: that property owners are presumed to be benefited; that liability .on the taxbills to be issued to defendant would rest on such presumption; and that the basis for such liability is this benefit, (b) Compulsion of the law upon the property-owner, and consequent liability on the special taxbill, stand in lieu of consent to, or ratification of, the contract by him. (c) It was not essential that he should be expressly mentioned in. the contract. St. Louis v. Yon Phul, 133 Mo. 565; Snider v. Express Co., 77 Mo. 526. (d) The city owes him both a legal and a moral duty to enforce the contracts. St. Louis v. Von Phul, 133 Mo. 570. (e) The lot-owners are referred to in the contracts as the persons against whom the special taxbills were to be issued, (f) And, therefore, the defendants, by executing contracts containing such a provision, are es-topped to raise this point. For, as one purports to bind himself, he shall be bound. (5) The basis of estoppels is fair dealing. St. Louis v. Davidson, 102 Mo. 154. See analogous cases of De Bernardi v. McElroy, 110 Mo. 657; Dair v. U. S., 16 Wall. 4. Defendants contend that they are to be held only to the strict letter of the contract; and that the obligation of sureties is not to be extended by implication or construction. To which we reply that their obligations are not to be evaded by implication and refinements of construction. (а) If defendants were right in their contentions, they would he liable to the city only in nominal damages ; although they contracted with the city for faithful performance of the entire contract, (b) This would wipe out a part of the condition of their bonds, viz.: “If the said Gr. H. Wright Contracting Company should faithfully and properly perform the contract .... according to all the terms of said contract.” Such trifling with their solemn undertaking is not to be tolerated, (c) Defendants in effect admit the breach; and make no defense on the merits. (б) If contractors doing construction work for cities are not-liable to the city for damages occasioned by their default, then this is probably the only sort of contract and bond known where the law furnishes no adequate remedy for the breach. Sound public policy ought not to permit such an unjust result. He who occasions an injury ought to respond in damages therefor. (7) Recovery in this suit will bar-any proceedings on the bond by beneficiaries of the trust. “The city will have to settle with the cestuis que trustent.” Rogers v. Gl-osnell, 51 Mo. 469. It is only when the petition, in a suit by the city, does not state that it is brought for the beneficiaries that the suit is not a bar to further suits by them. Bethany v. Howard, 149' Mo. 504. (8) The evidence as to the issuance of special taxbills to other contractors establishes their validity in every particular, (a) These taxbills are not attacked by defendant’s pleading, (b) They could not be introduced in evidence, because most of them at least had been receipted and were lost or scattered among a large number of lot-owners, (c) It was not a part of' plaintiff’s case to introduce them in a suit against a defaulting contractor. Proof that the subsequent contractor was paid as the former agreed to be paid, viz.: by the issuance of taxbills, was all that was necessary, (d) The measure of damages is the difference in the contract price, (e) The findings of the referee, confirmed by the trial court, as to the issuance of the taxbills, will not be reviewed. Steffen v. St. Louis, 135 Mo. 44.
   WOODSON, J.

The city of St. Louis, as trustee of an express trust, instituted this suit in the circuit court of that city against respondents, based upon twelve distinct bonds, each declared upon in a separate count of the petition, and each involving questions identical in principle. We will, therefore, notice only one count, and what'is said regarding that one will apply equally well to the other eleven.

The facts of the case are, substantially, as follows:

The city of St. Louis on May 18,1900, entered into a written contract with defendant Gr. H. Wright Contracting Company, whereby the latter undertook to grade and pave some streets and alleys in said city, according to certain plans and specifications on file in the office of the Board of Public Improvements, for a price therein stated, and to be paid for by special tax-bills, to be issued by the city against the lots adjoining the improvements, as provided for in the city charter. The contract provided that if the contracting party abandoned the work or otherwise defaulted, the city should have the right to cancel the contract and relet the work.

The City Trust, Safe Deposit & Surety. Company of Philadelphia executed the bond as surety and bound itself in a fixed penalty, conditioned that the Contracting Company should faithfully and properly perform the contract according to all the terms thereof, and should, as soon as the work was completed, pay to the proper parties all amounts due for materials and labor used and employed in the performance of the contract.

The language of the bond is as follows:

“In the event the said Gr. H. Wright Contracting Company shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the work contemplated by contract is completed, pay to the proper parties all amounts due for materials and labor used and employed in the performance thereof; then this obligation to be void, otherwise in full force and' effect, and the same may be sued on at the instance of any materialman, laboring man or mechanic in the name of the city of St. Louis, to the use of such materialman, laboring man or mechanic for any breach of the condition thereof.”

The Contracting Company refused to do any work whatever under the contract, whereupon the city relet the contract to J. E. Perkinson, for the said improvements, at an advanced price of $6,500. Perkinson made the improvements according to the second contract, and the city issued special taxbills against the adjoining lots and delivered them to him in full payment for said improvements; each taxbill, of course, bore its proportional part of the- $6,500, the increased cost of the improvements.

The cause was referred to a referee, and he found for the city and recommended a judgment agáinst appellants for the said $6,500. Upon the incoming of the report appellants filed exceptions thereto, which were overruled, and thereupon they filed their motion for a new trial and in arrest, both of which being overruled by the court, they duly appealed the cause to this court.

I. The questions involved in this case are, whether or not the city of St. Louis, under the contracts and bonds mentioned, is a trustee- of an express trust, for the use and benefit of the property-owners of the adjoining lots to the streets and alleys proposed- to be improved by the city, and whether or not the city, by authority of and in pursuance of said contracts aud bonds, can sue for and recover the damages they sustained, for their use and benefit, caused by breaches thereof.

Exhaustive research by court and counsel has faded to discover where these exact questions have ever been presented to any court in this State or elsewhere. The questions seem to be of first impression in this country, and will, on that account, have to be approached and disposed of upon principle, and not from precedent.

The general rule that third parties cannot maintain an action for damages resulting from a breach of contract by one of the parties thereto, is well grounded in the jurisprudence of this State. [Roddy v. Railroad, 104 Mo. 244-5, and cases cited.]

The reason for this rule is apparent.

There is no privity of contract nor contractual relations existing between the obligee of the contract and the third parties. As such obligee he is a stranger to the others and owes them no duty; and in the absence of duty there can be no obligation. [Savings Bank v. Ward, 100 U. S. 195-200 to 207.]

As stated by this court, speaking through Judge Maceaklane, in the case of Roddy v. Railroad, supra, “To hold that such actions could be maintained, would not only lead to endless complications, in following out cause and effect, but would restrict and embarrass the right to make contracts by burdening them with obligations 'and liabilities to others, which parties would not voluntarily assume.”

The above rule, like most other principles of law, has its well-founded limitations and exceptions; and one of those exceptions is, that a contract between two parties based upon a valid consideration may be enforced by third parties when entered into for their benefit, and that is true though such parties are not named in the contract nor are privy to the consideration.

It is sufficient in order to create the necessary privity that the obligee owe to the parties to be benefited some obligation or duty, legal or equitable, which would give them a just claim. [St. Louis to use v. Von Phul, 133 Mo. l. c. 565; Ellis v. Harrison, 104 Mo. 276.]

II. The city to maintain this suit proceeds upon the theory that the contract entered into between it and the appellants, whereby they obligate themselves to pave the streets and alleys mentioned, was based upon a valid consideration, and was made by it for the benefit of the adjoining property-owners; that is to say, in contemplation of law, street improvements are beneficial to the adjoiningTots which inures to the owners by virtue of their ownership. In other words, the city not only acts for itself in the matter of street improvements, but also as the legally constituted agent of the property-owners, and in that respect the contract partakes of a dual nature — first, for the benefit of the public at large; and, second, for the benefit of the property-owners.

There is a broad distinction between the principle involved where a contract is entered into between two parties for their own use and benefit, and where they make a similar contract for the benefit of a third party. A breach of the first would create no cause of' action in favor of a third party, even thougih he was thereby deprived of large benefits which would have flown to him had the contract been performed; while in the latter case the breach would create a cause of action in his favor, even though the benefits he would have received from its performance might have been insignificant as compared to those he was deprived of by the breach of the former. This proposition is fully supported by the authorities cited in paragraph one of this opinion.

From what has thus been stated, it can be seen that the character and value of the benefits and their loss or reception have no' weight whatever in determining the question as to whether or not the contract was made for the benefit of third parties, who in this case are the property-owners. So the primary question involved in all of this class of cases, where the third parties are not named or designated, is one of intention. And as this contract is in writing that intention must be gathered from the writings. In order to do that we have the right to consider the character of the parties to the contract, and the facts and circumstances surrounding them at the time of its execution. With that rule of construction in mind, we find a municipality, with only statutory powers, exercising governmental functions, as a subdivision of the State, entering into a contract to improve its streets and highways. If we ask ourselves the question, for whose benefit was the contract made? the answer naturally comes back, for the use and benefit of the public, because the improvement of the street, which belongs to the public, was the object sought to be obtained. On no other principle would the city have the right to tax her citizens for such improvements. It is powerless to raise funds by taxation for the construction of private ways.

Having disposed of the public branch of the question, we now come to the consideration of the branch which it is contended was intended’ for the benefit of the property-owners.

Under our form of government street improvements can be paid for in two ways: first, by general taxation, where the entire public pays the cost, in which case the property-owners, as such, have no concern; and, second, by special taxation, where the cost of the improvements is assessed against the adjoining lots, and in the latter case the public is not interested. But in both cases the same result is reached by two different ways or means, both of which are equally beneficial to the traveling public, and the improvements, when completed, under either mode of taxation, are just as beneficial to the adjoining property as the other. That being true, we are unable to see how the city is acting for the individual property-owners any more in the one case than the other. In both cases the contracts for construction are for the public good and both are equally beneficial to- the adjacent property-owners, and it is equally as much the duty of the city to guard the interest of the public in- making paving contracts to be paid for out of the public revenues as when the cost is to be assessed against the lots. Yet we do not suppose that it would be contended that each' and every individual member of the public would have a cause of action against the contractor for a breach of his contract, which necessitated a reletting of the improvements at a much higher price than that stipulated for in his contract. The principle involved in both cases is identically the same.

There is no express or implied authority to be found in the charter of the city of St. Louis to improve streets for the benefit of the adjoining lots, or for the benefit' of their owners, because that would be exercising the taxing power of the city for private purposes, which is' expressly prohibited by the Constitution. [Art. 10, sec. 3, Constitution of Missouri, 1875.]

The tax is imposed for public purposes in the payment of street improvements, and not for private use. As an incident only to the public improvement the adjoining property is benefited, and because of that benefit the tax is assessed against the property and not against its owners. It is optional with them to accept or reject the benefits after the work is completed.

What we have here expressed is not in conflict with the views stated by this court in the case of St. Louis to use v. Von Phul, 133 Mo. l. c. 565. That case was a suit brought by a materialman against the contractor and hi's bondsmen for materials furnished in the improvements of a street in the city of St. Louis. The bond contained, among others, the following provision:

“And shall, as soon as the work contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof, then this obligation to be void, otherwise of full force and' effect, and the same may be sued on at the instance of any material-man, laboring man, or mechanic, in the name of the city of St. Louis, to the use of such materialman, laboring man, or mechanic, for any breach of the condition hereof.”

This court held that the plaintiff could recover in that case, because the bond expressly provided for the payment of all materials furnished the contractor; and distinguished that case, on account of that provision in the bond, from the case of Kansas City ex rel. Blumb v. O’Connell, 99 Mo. 359.

The latter case was a suit against O’Connell and his bondsmen for personal injuries received by the alleged negligence of O ’Connell while building a sewer. The bond in that case contained this provision:

“It is further distinctly agreed that the said party of the first part shall be responsible for all unlawful damages to persons or property, from negligence, or carelessness, in doing said work, or in not using proper precaution in doing said work, .... and shall indemnify the City of Kansas against all losses or claim for damages, on account of such neglect, or carelessness, .... and to pay all laborers employed on said work.”

In passing upon that case, this court said:

. “Aside from the covenants a sto laborers, the object and purpose of the bond is to secure a performance of the work according to the terms of the contract, and to protect, and save harmless, the city from damages occasioned by the negligent acts of the contractor and his servants. In these respects, it is not an agreement with the city for the benefit of third persons, but for the protection and benefit of the city. . . . This bond must be construed as a whole, and when this is done, aside from the covenant to pay laborers, it is simply one of indemnity to the city.'”

The same is true and may be said of the bond in this case, as there is no material difference between the provisions of the two. In the case at bar the provision of the bond is as follows:

“In the event the said Gr. H. Wright Contracting Company shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the work contemplated by contract is completed, pay to the proper parties all amounts due for materials and labor used and employed in the performance thereof; then this obligation to be void, otherwise in full force and effect and the same may be sued on at the instance of any materialman, laboring man or mechanic, in the name of the city of St. Louis, to the use of such materialman, laboring man or mechanic, for any breach of the condition thereof. ’ ’

The language of the bond clearly states what was the intention of the parties thereto. It first guarantees that Gr. H. Wright Contracting Company would faithfully and properly perform all the terms of the contract, and hold the city harmless for all damage it might sustain by reason of the breach thereof, and for the payment of all sums due for labor and materials performed and furnished upon the works.

The principle of expressio unius exclusio alterius applies with great clearness to the facts of the case. The bond not only named the third parties for whose benefit it was given, but it went further, by way of limitation, and stated what third parties could sue thereon. If the designation of the third parties who could sue on the bond did not amount to the limitation, the third parties for whose benefit the contract was made, then why name them at all, because otherwise not only those named but all others could maintain a suit if respondent is correct in its. contention.

In the case of Howsmon v. Trenton Water Co., 119 Mo. 304, the water company, for a valid consideration, agreed to furnish the town and its citizens good, clear and wholesome water in sufficient quantities for fire and other purposes, and in case the company failed to supply sufficient water to extinguish fires, then it should be held for all damages occasioned by such failure.

In March, 1899, Howsmon’s house was burned because the Water Company failed to supply sufficient water to extinguish the fire. He sued the Water Company for damages, and alleged the breach of the contract with the city of Trenton as the cause of his injury. And the court, in passing upon that question, used the following language:

“It is not every promise made by one to another, from the performance of which a benefit may ensue to a third party, which gives a right of action to such third person, he being neither privy to the contract nor to the consideration. The contract must be made for his benefit, as its object, and he must be the party intended to be benefited.” [Citing cases.]

And, continuing, the court said:

“In other words, the rule is not so far extended as to give to the third person, who is only indirectly and incidentally benefited by the contract, a right to sue upon it.....The town of Trenton had power to pass ordinances ‘to prevent and extinguish fires’ and, as incident thereto, power to contract for a supply of water for that purpose. But it would seem, under the authorities cited, that plaintiff cannot maintain this action for cogent reasons, which may be put in several ways:

11 First. Although it was within the power of the town by contract to supply water to extinguish fires, it did not owe the duty of extinguishing fires to plaintiff. [Heller v. Sedalia, 53 Mo. 159.] Consequently, the case is not within the lines of adjudicated cases which maintan- the exception to the rule that suit upon a contract must he brought by a party to the contract in cases where the promisee owed a duty to the third party, which the promisor undertook to perform.

“Second. A municipal corporation, in making contracts for its citizens, acts for them collectively, and for all of them in every act, and the relation of privity is not, and cannot be, introduced into such contracts by reason of tax-paying or the discharge of any civil duty by any individual citizen.

“Third. The benefits to be conferred upon the individual citizen by the contract are incidental to the contract, the primary object of which is the benefit of all the citizens in their corporate capacity.

“Fourth. It does not appear that it was made for the benefit of a citizen in. his individual capacity, but for the municipality, and in the absence of an express power in the municipality to make contracts for the indemnity of its individual citizens, should be so construed.

“Fifth. The relation that the contractor sustained to the town was that of its agent or servant to carry out the obligations of the contract upon its part for the benefit of all the citizens; for the enforcement of the terms thereof the citizens must look to the authorities of the city, and cannot individually maintain an action for a breach of the contract.

“Sixth. The town has no authority to make a contract to indemnify a citizen for the loss, of property, .... and therefore could not make such a contract that would he binding upon another.”

The city has no more authority in this case to make a contract to benefit the adjacent property than the town of Trenton had to indemnify a citizen for the loss of property, caused by fire. The fire protection in the one ease may be as beneficial to the property-owner as street improvements might be to him in this case.

The principle of law announced in the Trenton case is applicable to the facts of the case at bar and is decisive hereof.

III. The respondent seems to lay great stress upon its contention that the city is the legal agent of the property-owners while performing its public duties in the improvement of streets of the city.

Various phases of that question have often been before the courts of this country, and have received very careful and deliberate (Consideration.

All of the well-considered cases start out by the assertion of the broad proposition that the contract must be made for the benefit of the third parties, as its object, and they must be the parties intended to be benefited thereby. [Simson v. Brown, 68 N. Y. 355; Howsmon v. Trenton Water Co., 119 Mo. l. c. 308.]

That being true, the question naturally presents itself, for whose benefit was the contract of improvement made in that case? We attempt to answer this particular phase of the question involved in paragraph two of this opinion by citing the Constitution, which provides that all taxation shall be for public purposes, and draw the conclusion therefrom that the object of the contract — the street improvement — was for the benefit of the city and the public at.large, because it was to be paid for by, taxation, which could not be done if the improvements had been for third parties, the property-owners, who were not parties to the contract. We believe the conclusion there reached was sound, but the respondent contends that while that was one of the objects, yet there was another object or purpose intended to be accomplished by it; and that was to enhance the value of the adjacent property, and thereby create .or establish a fund, as it were, upon which the assessment could be levied for the payment of the taxbills, otherwise they would be void, their validity resting exclusively upon benefits. That i's true, but the sole intention of the city in creating that fund was to provide a fund out of which the taxbills could be paid, and in one breath the city created the fund, and in the next it assigned it to the contractor, and thereby prevented it from passing to and vesting •in the property-owners until the improvements were completed according to the terms of the contract, and not then until they exercised their option to accept the benefits so created and actually paid for the same, and neither the city nor anyone else could exercise that option for them, except agents of their own creation.

A personal judgment against a property-owner for ■street improvements is void, and any statute authorizing such a judgment is unconstitutional. [Neenan v. Smith, 50 Mo. 525; St. Louis to use v. Allen, 53 Mo. 44; Carlin v. Cavender, 56 Mo. 286; Louisiana v. Miller, 66 Mo. 467; Thornton v. City of Clinton, 148 Mo. l. c. 663.]

So it seems clear to us that whatever benefits may accrue to the property-owners as a result of street improvements are purely incident to the improvement, and not an object intentionally sought to be obtained .by the contract which was made for the improvements.

Third persons who are only collaterally and incidentally benefited by the terms of a contract have no cause of action for its breach. [Howsmon v. Trenton Water Co., 119 Mo. l. c. 308.]

The courts are not uniform in their opinions as to the principle upon which this class of actions are maintained. Many of them base their opinion upon the ground that the obligee in the contract owed the third party some debt or duty, either legal or equitable, and that by accepting the contract the law creates a privity of consideration between them upon which he could maintain a cause of action for its breach. [Vrooman v. Turner, 69. N. Y. 280.]

But in applying that principle to this case, we are confronted with the proposition that the city owed no duty to the property-owners to increase the value of the property, hut was merely creating a fund or providing a means out of which or by which the contemplated improvements could be paid. To this proposition the respondent might reply, that while that may be true, yet the law required the city to let the contract at the lowest price obtainable, and that the property-owners had the right to- avail themselves of that price.

In answer to that contention it may be said, that in all the cases where third parties have been permitted to recover upon a contract entered into for their benefit, said third parties had either adopted the contract or complied with the provisions thereof relating to them, or the debt or duty which wa,s owing to the third party had passed to or vested in the obligee of the contract before the suit was instituted. We have examined many cases and have- not found a single exception to that rule.

The property-owners in this case do not fall under that rule. They never adopted the contract, they never performed any duty imposed upon them by it, nor has the city turned over to the appellants anything of value it owed to the property-owners as a consideration for the contract between it and the appellants.

In the whole procedure for street improvements there is not an act authorized to be done by the city that has even the color of agency about it in so far as the property-owners are concerned, except that it shall let the contract for the work to be done to the lowest bidder. But when the whole scheme of the procedure is investigated it will be seen the city does- not act for, nor pretend to act for, the property-owners.

The owners of these lots were not parties to the contract. The proceedings as to them are in invitum, and their property is not affected until it is brought within the strict meammg of the statute and even that does not affect the owner without he voluntarily accepts the benefit and pays therefor. [Thornton v. Clinton, 148 Mo. 648; Sweany v. Railroad, 54 Mo. App. 265.]

So in the absence of an ordinance or a contract expressly providing therefor we must hold that the defendants are not liable under the bonds sued on for the damages claimed to. have been sustained by the property-owners.

IY. Both parties to this suit have presented and discussed in their briefs several other points, but the view we have taken of the case renders it unnecessary for us to discuss them in this opinion.

The city is not asking for damages in this suit in its own behalf.

For the reasons above stated the judgment of the circuit court is* reversed.

All concur.