author: WALKER, P. J.

text:
    CITY OF KENNETT, Appellant, v. KATZ CONSTRUCTION COMPANY and AMERICAN SURETY COMPANY.
    Division Two,
    February 16, 1918.
    1. APPEAL: From Interlocutory Order: Extent of Review. When an order for a new trial is granted for a specific reason, appellant’s burden is limited thereto in showing error in the trial court’s action. If other grounds are relied on to sustain the order, the respondent must preserve and call the appellate court’s attention to them or they will not be considered.
    2. ORDER GRANTING NEW TRIAL: Remittitur: Excessive Verdict. The authority of the trial court to enter a remittitur on account of an excessive verdict, is limited to cases in which the jury find: for more than the amount authorized in the instructions or pleadings. Hence an order granting a new trial unless the plaintiff enters a remittitur in a named sum, although on its face seemingly based on an excessive verdict, will not be so considered in the appellate court, if it is apparent from an analysis of the order and an examination of the record, that the real reason for granting the new trial was the giving of an instruction for plaintiff on the measure of damages and the refusal of an instruction asked by defendant on the same subject.
    3. -: Revew on Appeal: Other Record Matters. In reviewing an order granting a new trial, the appellate court is not limited in determining the trial court’s reason for granting the new trial to the mere letter of the order, but may call to its aid other affirmative record facts necessarily explanatory of the court’s action.
    4. -: Review of Court’s Discretion. There can be no discretion as to the law of a case. The giving of an instruction as to the measure of damages is a ruling on a matter of law, and if such was the reason of the court’s action for granting á new trial the question of whether the instruction announced a correct rule may be reviewed on an appeal from the order. Such review does not involve the trial court’s discretion, for it is only in the application of correct rules of law to the facts of a case that the exercise of discretion is permissible.
    5. BREACH OF CONTRACT: Measure of Damages: Liability of Surety. Where the contract was that the contractor was to furnish the materials, do the excavating and install a complete sewerage system, and the city paid him for the work as it progressed and after lie had been paid nearly ninety per cent of the contract price he abandoned the work, the city is entitled to be made whole and to recover whatever amount in excess of the contract price is necessary to complete the work; and in a suit on his bond the surety’s liability is the same.
    6. -: -: Duty to Complete the Work. And in such case proof of performance by the city of the uncompleted work does not constitute a condition precedent to its right to recover the amount necessary to complete the work.
    7. -: -: Speculative Damages. Damages sustained by the city are not speculative when the materials furnished and the work performed are known, and the outlay necessary to complete the sewerage system according to the contract is ascertainable with reasonable certainty from the testimony of experts familiar with the cost of materials and labor.
    8. -: -: -: Uncertainty as to Amount; Best Evidence. - In applying the rule as to uncertain damages, it is the uncertainty as to their nature, and not as to their measure or extent, that is meant. The actual amount of damages arising from a breach of contract may not be susceptible of exact proof, but the law does not permit one whose act has resulted in the loss to escape liability on that account. The manner of measuring the damages having been ascertained, the law only requires that the best evidence of the amount of which the nature of the case is susceptible be adduced.
    9. - — : City’s Reserved Right to Complete Work: Limitatipn on Power to Sue Surety. A clause in the contract to the effect that if the contractor shall abandon the work the city “shall have the right to annul and cancel this contract and to complete the same at the expense of contractor’’ means no more than that the city is given the permissive power to complete the work if it chooses, and in no wise precludes it from suing on the contractor’s bond for damages without completing the work.
    10. -: Damages: Expert Testimony. The testimony of experts, familiar with the cost of materials and of the amount of labor necessary to install the sewers and to complete the work, abandoned by the contractor before its completion and after the contract price had been almost entirely paid to him, is competent evidence to prove the amount of damages the city sustained.
    11. REMARKS OF COUNSEL: Refusal of Contractor to Testify. Remarks of counsel in arguments to the jury in a civil case are not eryor unless their prejudicial effect was sufficient to influence the rendition of the verdict. In a suit on a bond, growing out of a construction contract, reference by counsel in his argument to the jury that the surety had not put the contractor, who was in the court-room, on the witness stand to question or in any wise vary-the testimony of the experts examined by the plaintiff in proof of the damages sustained, was not prejudicial error.
    12. REFUSING INSTRUCTIONS. Where the instructions given for plaintiff clearly define and aptly submit a material issue, it is not error to refuse similar instructions asked by defendant.
    13. ACTION ON BOND: Changes in Contract. Provisions in the contract, and in the bond itself, that extensions of time, alterations in or additions to or omissions from the work as required by the plans and specifications, should not violate the bond or discharge the surety, although made without the surety’s consent, are as much a part of the bond as any other obligation expressed in it, and preclude the surety from objecting to any changes except those so extensive as to constitute the substitution of a contract different from the original. And where the changes were advantageous to the contractor, in that they entailed no additional time and lessened the cost of construction, the rule that changes in the construction of the improvement agreed to, subsequent to the execution of the contract, releases the surety, has no application, even in the absence of an agreement by the surety for changes.
    14. -: -: Settled by Jury. Where the instruction given fairly submits the facts regarding changes in the plan of construction and the conditions upon which the surety would be released from liability because of such .changes, the jury’s verdict is binding on the appellate court, and forecloses the question of release.
    15. -: Failure to Pay: Finding of Jury Conclusive. A verdict for plaintiff was a finding by the jury that plaintiff had not failed to pay for the work done in the manner prescribed by the contract, the question being submitted to them by proper instructions and there being substantial evidence to support the finding. Under such circumstances the finding is conclusive on appeal.
    Appeal from Bollinger Circuit Court. — How. Peter H. Huck, Judge.
    Reversed and remanded (with directions).

      Orville Zimmerman, Ely, Pankey & Ely, William Morgan and Jones & Jones for appellant.
    The court erred in granting a new trial for "the reason assigned, to-wit: that the court had erred in the trial of said cause in refusing defendant’s instruction number 14 on the measure of damages, (a) Because plaintiff’s instruction number 2, given by tbe court at tbe trial of said cause properly declared the measure of damages applicable to this cause, (b) Because the defendant’s instruction number 14 did not properly declare the measure of damages applicable to this cause and. would have been error- if given. Couch v. Railroad, 252 Mo. 37; Brokerage Co. v. Campbell, 164 Mo. App. 20; Foundry Co. v. Moulder’s Union, 177 Mo. App. 90; Tirry v. Hogan, 181 Mo. App. 61; Norman v. Vandenberg, 157 Mo. App. 490; Shoemaker v. Crawford, 82 Mo. App. 490; Kerns & Lorton v. Telegraph Co., 174 Mo. App. 439; Railroad v. Wingerter, 124 Mo. App. 434; Manter v. Truesdale, 57 Mo. App. 446; Simmons v. Whitman, 113 Mo. App. 357; Danforth &. Armstrong v. Railroad, 93 Ala. 620, 99 Ala. 338; Town Co. v. Lincoln, 56 Kan. 150; Wolcott v. Mount, 36 N, J. L. 270; Wakeman v. Mfg. Co., 101 N. T. 205; Bagley v. Smith, 10 N. T. 496; Allison v. Chandler, 11 Mich. 555; Gilbert v. Kennedy, 22 Mich.. 129; Railway v. Hepner, 83 Tex. 140; Oil Co. v. Blair, 113 Pa. St. 88;' Cordage Co. v. Luthuy & Co., 98 Ky. 589.

      W. G. Dinning and Oliver & Oliver for respondent.
    (1) The granting of a new trial is within the sound discretion of the trial court, and unless it is manifest that its judicial discretion has been abused, its ruling in that regard will not be disturbed by an appellate court. Bank v. Wood, 124 Mo. 76; Noble v. Kansas City, 95 Mo. App. 167; Ferrell v. Transit Co.,' 103 Mo. App. 454; Ridge, v. Johnson, 129 Mo. App. 541; Morris v. Kansas City, 117 Mo. App. 298; Karnes v. Wind, 126 Mo. App. 712; Lockwood v. Ins. Co., 47 Mo. 50; Choquette v. Railroad, 152 Mo. 257; Devine v. St. Louis, 257 Mo. 470; Wells v. Andrews, 133 Mo. 667. (2) When the order of the trial court does not specify the ground upon which a new trial is granted (as in the case at bar) it will be sustained if any of the grounds set out in the motion are sufficient. Hewitt v. Steele,118 Mo. 473; Metropolitan, etc., Co. v. Webster, 193 Mo. 351; Sharp v. Adam, 121 Mo. App. 565; Roman v. Boston Co., 87 Mo. App. 186; Secrist v. Bank, 104 Mo. App. 113; Bank v. Wood, 124 Mo. 76-77; Devine v. St. Louis, 257 Mo. 470; State ex rel. v. Thomas, 245 Mo. 65. (3) There were many grounds upon which trial court was warranted in granting defendant a new trial. First, the jury’s verdict was excessive, (a) Where by their contract, parties agree upon the measure of damages or upon the method for the ascertaining of the measure of damages, such provision is as binding as is any other part of the contract. Surety Co. v. Woods, 45 C. C. A., 282; Simmons v. Whitman, 113 Mo. App. 357. (b) The trial court has a large discretion in granting new trials upon the ground that the verdict is excessive. Morrell v. Lawrence, 203 Mo. 1. c. 381. Second, the statement by plaintiff’s counsel during the trial without being under oath of material evidential facts prejudicial to the defendant. Holliday v. Jackson, 21 Mo. App. 660. Third, the possibility of some of the jurors having been influenced by the statements or conduct of one of the parties made or done while not on the witness stand (the treating by the city clerk of some of the jurors during the progress of the trial). Tatlow v. Grantham, 66 Mo. App. 509; Choquette v. Railroad, 152 Mo. 266. Fourth, the admission at the trial of irrelevant evidence prejudicial to defendant, namely the expert testimony as to the costs of completing the work as the measure of damages, when the parties had by their contract fixed another method of ascertaining said measure of damages. Surety Co. v. Woods, 45 C. C. A. 282; Simmons v. Whitman, 113 Mo. 357; Hunt v. Railroad, 36 Fed. 481. Fifth, the entering into a new and supplemental contract materially affecting and materially changing the whole plan of construction without notice to or consent of the defendant surety company. Hawman v. McLean, 139 Mo. App. 429; United States v. Freel, 186 U. S. 309; Eldridge v. Fuhr, 59 Mo. App. 44; Killoren v. Meehan, 55 Mo. App. 427; Beers v. Wolf, 116 Mo. 179. Sixth, the admission of all testimony relative to breach of contract by Katz Construction Company after the showing by defendant surety company that the city first breached the contract by reason of its failure to pay for the work as it contracted and agreed to do. Construction Co. v. Butler, 165 Cal, 497; McCullough v. Baker, 47 Mo. 410; Bean v. Miller, 69 Mo. .384; Morgan v. Regan, 48 Mo. App. 461; Bank v. Fidelity & Deposit Co., 40 So. (Ala.) 415, 5 L. R. A. (N. S.) 418; Elliott on Contracts, sec. 3699. (4) The liability of a surety company cannot be extended by implication and the courts will carefully guard its rights and protect it against a liability not strictly without the expressed terms of its contract. Miller v. Suart, 9 Wheat, 680; Smith v. United States, 2 Wall. 234; Livingston v. Moore, 44 N. Y. Supp. 125; Page v. Kreaky, 137 N. Y. 307; National M. B. Assn. v. Conkling, 90 N. Y. 116. Here a new supplemental contract was entered into between the plaintiff city and' the Katz Construction Company, without consent of or notice to defendant surety company, changing not only the work, plans and specifications, but the whole method of construction.
   WALKER, P. J.

This is an appeal from an order granting a new trial. The appellant, the city of Kennett, to be designated herein as the city, brought suit in the circuit court of Dunklin County against the Katz Construction Company and the American Surety Company, to be designated herein respectively as the contractor and the surety company, each a corporation, upon a bond for $18,000 of the former as principal and the latter as surety, given to the city to insure the faithful performance of a contract for furnishing the necessary materials and labor to construct certain lines of sewers in the streets and alleys of the city and for the performance of other work incident thereto and necessary to facilitate the disposal of sewage, for which the contractor was to' be paid a total sum of $35,204.06, in the amounts and at the times stated in the contract; and which contract it was alleged had been breached by the contractor. The surety company filed its separate answer. The city dismissed as to the contractor. A change of venue was granted on the application of the surety company to Bollinger County where, upon a trial, a verdict was rendered for the city in the sum of eighteen thousand dollars. A motion for a new trial was sustained, unless the city would enter a remittitur. This it refused to do, and perfected its appeal to this court.

The contract and bond on which this action is based contains among other provisions, the following:

“And it is hereby expressly agreed by and between all parties thereto that no extension of time, or alteration in, addition to, or omissions from the work provided for under said contract, plans and specifications, although without consent of said surety, shall violate this bond or discharge said surety. . . .
“Upon request of the contractor, the engineer will, upon or about the first of each month, make an estimate of work done and material delivered for the previous month, and payment will then he made by the council for ninety per cent of said estimate.”

The contract also provided that the work should be completed within nine months after its execution, which was in April, 1913, and for each day’s delay the contractor should pay $5 per day as liquidated damages. Thereupon the contractor commenced work under the contract. Subsequently certain changes were made in the plans and specifications at the request of the contractor. According to the testimony of expert engineers these changes did not increase the cost of construction or entail a delay in the work.

The work progressed under the contract until September 1, 1914. During this time thirteen estimates were rendered by the contractor to the city, aggregating $32,436.86. Of this amount ten per cent was withheld in accordance with the contract to be paid upon the completion and acceptance of the work, and the contractor was paid the difference, to-wit, $29,193.17, less $645 held by the city for delays in the work, which constituted the aggregate up to that time of the penalty therefor of $5 per day as prescribed in the contract. Thereafter estimate number 14 was rendered for work performed during the month of September, 1914, and the contractor was informed that the city was temporarily out of funds necessary to pay that estimate. The contractor then agreed that if the city would pay six per cent interest on the amount due, it would carry, the warrant and proceed with the work, whereupon the warrant was issued for estimate number 14 and delivered to it, and same was later paid with interest thereon. Thereafter estimate number 15 for work performed during the month of October, 1914, was rendered by the contractor to the city, and was settled in the same manner as estimate number 14.

After the delivery by the city of its warrant to the contractor in payment of estimate number 15 and the acceptance of same by it, owing to the amount of water in the ground where the sewers were being constructed, it was mutually agreed that work on the system should be suspended until such time as it was practicable to resume operations. At the time this agreement was entered into the contractor had been paid for all work then performed.

The total estimate to this date for work performed amounted to the sum of $34,400.15. The amount paid to the contractor was $30,960.14. The difference between the total estimates for work performed and the amount paid the contractor was $4,390.01, $950 of same being the aggregate penalty for delays occasioned by the contractor, and the balance, $3,440.01, being the amount, ten per cent, authorized to be withheld until the completion of the work.

Conditions thereafter permitting that work be resumed, the city notified the contractor to proceed to complete the work and that funds were available for its payment. At that time the city had available the sum of $6100, for the payment of this work, or more than the balance due the contractor under its bid. The contractor refused to perform any more work under the contract. Whereupon the city gave notice to the surety company, as surety on the contractor’s bond, of the abandonment by tbe latter of its contract and requested tbe surety company to complete the work. This it failed and refused to do. Whereupon the city entered into another contract with one A. O. Brown, in an endeavor to effect the completion of the sewer system in accordance with the original plans and specifications and the changes made at the request of the contractor, in which undertaking the city agreed to pay not exceeding $6100 for the completion of the work, and it expended this sum in that behalf, which was found not sufficient for the purpose. Thereupon this suit was brought to recover on the bond with the result stated. At the trial experts testified it would require an expenditure of $18,000 to $20,000, in addition to all former sums paid out by the city in that behalf, to complete the sewer system in accordance with the original specifications and the changes made. The jury returned a verdict in favor of the city and against the surety company in the sum of $18,000; the city having, as stated, theretofore dismissed the action against the contractor. A motion for a new trial was sustained on the ground, as stated in the order therefor, that the city had refused to enter a remittitur, but as disclosed by the record that the trial court had erred in not instructing the jury that the right of recovery should have been limited to $6,100, that being the amount the city had expended in attempting to complete the sewer system. Other conditions of the contract, facts in evidence, and actions of the trial court, will, if necessary for the proper understanding of the case and the determination of the issues, be set out in the opinion.

I. The general rule as to the extent to which this court will review a record upon an appeal from an interlocutory order, as in the instant case, is as follows: When an order for' a new trial is granted for a specific reason, the appellant assumes no other burden of showing error than that which prompted the trial court’s action. If other grounds are relied on to sustain the order, which have been preserved in the record, the respondent must call the appellate court’s attention to same or they will not be considered. [State ex rel. Bank v. Ellison, 266 Mo. l. c. 432; Benjamin v. Railroad, 245 Mo. l. c. 609; Emmons v. Quade, 176 Mo. l. c. 27; Millar v. Madison Car Co., 130 Mo. 523.]

The purpose of this rule is salutary. It sharpens the issues in enabling the appellant to directly combat the ruling of the trial court and limits the review, upon appeal, to the reasons for such ruling instead of requiring a consideration of all the issues raised during the trial. The statutory provision which directs that orders for new trials shall specify the grounds therefor (Sec. 2023, R. S. 1909) is, if nothing more, a legislative recognition of the wisdom of the rule.

An examination and an analysis, in the light of the record, of the order sustaining the motion for a new trial, will determine the rule of procedure applicable in a review of this case. It is as follows:

“Now come the parties herein by their respective attorneys and defendant’s motion for a new trial again coming on to be heard, it is taken up, argued and submitted to the court, and the court being sufficiently advised in the premises, orders that the said motion should be sustained unless the plaintiff enters a remittitur of eleven thousand nine hundred dollars, which remittitur plaintiff now refuses to make. It is therefore ordered and adjudged by the court that said motion should be and is sustained, and a new trial herein ordered. To which ruling of the court the plaintiff objected and excepted at the time.”

On its face this order may be construed as being based on an excessive verdict. Such a construction is tenable only upon a superficial consideration of the order. The authority to enter a remittitur, on account of an excessive verdict, is limited to cases where the jury finds for more than the amount authorized in the instructions. This was not the case here. The penalty of the bond, $18,000, was the limit, under the pleadings, of the city’s right of recovery. The evidence sustained a finding in this amount under the instructions given. The order, therefore, for the new trial could not have been based upon an excessive verdict, as this term is to be interpreted when relied upon as the reason for the granting of a new trial. The record, however, discloses that the real reason for the entry of this order was the giving of the city’s instruction numbered 2, on the measure of damages, and the refusal of the surety company’s instruction numbered 14, on the same subject. The city’s instruction fixed the measure at whatever sum had been shown to the satisfaction of the jury to be necessary to complete the work after its abandonment by the contractor. The minimum amount so shown was $18,000; this the jury found. The surety company’s instruction made this measure $6100, or the amount shown to have been actually expended by the city in an effort to have the work completed after its abandonment by the contractor. No analysis of abstruse legal principles is necessary, but a simple arithmetical calculation will suffice to determine not only what this order, from which the appeal was taken, means, but whether it is general or specific. To accomplish this we subtract $6100, the surety company’s measure, from $18,000, the city’s measure, which constituted the jury’s verdict, and the remainder is $11,900, or the amount held by the trial court necessary to be remitted. It is evident, therefore, that the court reached the conclusion after the consideration of the motion for a new trial, that the city’s instruction numbered 2 should have been refused, and the surety company’s instruction numbered 14 given. The ground, therefore, for the sustaining of the motion for a new trial is specific in its nature, and was based upon the court’s conclusion that it had, in the giving and refusing of instructions, erred in a matter of law, and therefore this review should be conducted under the rule first above stated. In reaching this conclusion we are not limited in determining the court’s reason for granting the new trial to the mere letter of the order therefor; but, we may call to our aid other affirmative record facts necessarily explanatory of the court’s action. Authorized to review the record, it would be an anomalous position to assume that we could not invoke it to enlighten us on this subject, especially when the presence of the case here is due solely to the granting of this order. The citation of precedents to sustain this conclusion is deemed unnecessary. However, this court has impliedly declared, although it did not, on account of the condition of the records in the cases cited, affirmatively hold, that a trial judge’s written opinion in granting a new trial may be considered in determining his reasons therefor. [Hewitt v. Steele, 118 Mo. 463; Kreis v. Railroad, 131 Mo. 533.]

In addition, it is not inappropriate in defining the limit of our review, to say that the doctrine of a wide discretion with which courts are held, in a certain class of cases, to be vested in granting new trials, is inapplicable here. The giving of an instruction as to the measure of damages was the court’s reason for its action. This was a matter of law. There can be no discretion as to the law of a case. It is only when the court’s ruling is directed to the facts that the exercise of discretion is permissible. [Loftus v. Met. St. Ry. Co., 220 Mo. l. c. 481.]

Has the city, therefore, well sustained the burden it assumes in showing that the trial court, stript of discretion, has ruled erroneously in granting a new trial? If so, then the verdict should be upheld, unless the surety company has, in addition, called our attention to other matters in the record sufficiently prejudicial in their nature to warrant our ruling otherwise.

II. The contract provides that for the sum of $35,204.06 to be paid to the contractor as the work progressed, it agreed to become responsible for the entire work; and it was not to be released from any responsibility for any part of same until the work embraced in the contract had been performed and accepted. Upon the contractor’s failure to comply with its contract, the measure of the city’s right of recovery was whatever amount in excess of the contract price might he shown by the best obtainable evidence, was necessary to complete the work in accordance with the obligation. The purpose of this contract renders the foregoing conclusion apparent. Generally it was the installation of a sewerage system; on the part of the contractor it was .to furnish the material and perform the work necessary to its completion; on the part of the city it was to secure the installation of the system for which it was to pay the contractor in the manner and to the amount stated. That the total amount agreed upon was subsequently shown to be far short of the sum necessary to complete the undertaking is, in the absence of fraud and mistake, immaterial. The measure of the city’s recovery is not to be determined from what the contractor may have estimated would compensate him for the work. As we said in Peltz v. Eichele, 62 Mo. 171, “what the plaintiff has lost by the.breach of the contract and not what the defendant has lost or gained is the measure of the damages.” [Addington v. Cullinane, 28 Mo. App. l. c. 242; Jemison v. Governor, 47 Ala. 390; Hawley v. Beldon, 1 Conn. 93; Murray v. Jennings, 42 Conn. 9, 19 Am. Rep. 527.] The city contracted, not for a part of the work, but for the furnishing of the material and the installation of the system in an operative condition. Its failure to receive this through a breach on the .part of the contractor entitles it to be made whole. In -this connection it may be said, parenthetically but none the less pertinently, that the bond sued on is to be construed in connection with the contract. [Morganton Mfg. Co. v. Anderson, 165 N. C. 285, 39 Ann. Cas. 763.] To make the city whole it may, upon a satisfactory showing, recover whatever amount in excess of the contract price is necessary to complete the work after its abandonment by the contractor. Proof of the performance by the city of the uncompleted work does not constitute a condition precedent to its right of recovery. [King v. Nichols & Shepard Co., 53 Minn. 453; Railway Co. v. Carthage, 36 Ohio St. 631; City of Sherman v. Connor, 88 Tex. l. c. 42.]

The damages sustained by the city were not speculative; but were susceptible of as accurate determination as any other kind of work for which specifications have been prepared and estimates made. The material furnished and work performed was' known. What had been done being known, it was not difficult to ascertain to a reasonable certainty the additional outlay necessary to complete the work. To determine this fact experts testified, who were familiar with the cost of the material and the amount of labor necessary to install a system of this character. [Railroad v. Hepner, 83 Tex. l. c. 140.] Exhaustive examinations disclosed their familiarity with the subject. They comprised engineers and contractors experienced either in the supervision or actual construction of this character of work. They agreed in the main as to the amount necessary to be expended to complete the work. Based thereon, Instruction Number 2 was given, and guided thereby, the verdict was rendered; the measure of damages having been correctly defined and the proof being ample, the trial court therefore erred in setting the verdict aside.

III. But it is insistently contended by counsel for the surety company, while not admitting the correctness of the manner in which the dam-a§'es were estimated, that, if arguendo this be conceded, the damages are nevertheless of such a nature as to not be susceptible of that definite ascertainment necessary to sustain the judgment. What we have heretofore said should suffice to settle this question; but that .nothing may be left undetermined let it be said further: in applying the rule against the recovery of uncertain damages, it is the uncertainty as to their nature and not as to their measure or extent that is meant. While the actual amount of damages from the breach of a contract may not be susceptible of exact proof, the law does not permit one whose act días resulted in loss to another to escape liability on this account. The manner of measuring the damages having been ascertained, impossibilities in proving same are not required, ■ but only that the best evidence be adduced, of which the nature of the case is capable; in other words, the degree of certainty of the proof is dependent upon the character of the proceeding. Why should greater certainty be required as to proof of the amount of damages than in respect to any other part of a case? All that can be expected in any case is that the relevant facts tending to show the extent of the damages be placed before the jury to enable it to make such an intelligent estimate of the same as the circumstances of the case will admit. [Couch v. Railroad, 252 Mo. l. c. 37; Brokerage Co. v. Campbell, 164 Mo. App. l. c. 20; Norman v. Vandenberg, 157 Mo. App. l. c. 490; So. R. Est. Co. v. Bankers Co., 184 S. W. (Mo.) 1035; Wolcott v. Mount, 36 N. J. L. l. c. 270; Allison v. Chandler, 11 Mich. l. c. 555.]

IV. It is contended that the manner of estimating the damages'] although admitted to be authorized in ordinary cases, is inapplicable here in account of the presence in the contract of section 13, the substance of which is as follows: “If the contractor shall abandon the work or shall neglect or refuse to comply with the engineer’s instructions, or shall fail in any manner to comply with this contract, the board of aldermen shall have the right, with the consent of the mayor, to annul and cancel this contract and to complete same at the expense of the contractor.”

This contention is urged on the ground that this provision is mandatory and exclusive and leaves no other remedy in the city upon a breach of the contract. There is no merit in this contention. The most casual reading leads to the conclusion that while the grant of power in the board of aldermen is complete, the right to exercise it is purely permissive. The words of the provision, “shall have the right” as applied to the hoard of aldermen, mean no more than that the board is empowered, etc. If this provision he construed as contended by counsel, the right of action as instituted does not exist; for, if, as asserted, the doctrine of expressio unius, etc., be applicable, then the right of the city to proceed against the surety company is unauthorized. This contention is not only untenable, hut is in direct conflict with the irpplied admission of. the surety company’s liability for the amount ($6100) actually expended by the city in an effort to complete the work after its abandonment by the contractor, as indicated by the surety company’s request for Instruction Number 14. As a case is tried below it should be presented on appeal. [Jones v. Pulitzer Pub. Co., 240 Mo. 200.] Waving this inconsistency, however, and construing the provision according to a fair interpretation of its terms in harmony with other portions of the contract, it constitutes, not an exclusive grant of power, but a declaration of a right which the board, in its discretion, may invoke or proceed under the general power given in like cases for a violation of a contract.

V. Certain testimony, that of the experts introduced by the city, is objected to as wholly irrelevant and insufficient to sustain the judgment. This complaint has in effect been disposed of. It will only be necessary, therefore, in passing, to say that the conclusion we have heretofore reached as to the manner in which damages of the character here under review may be shown, and the further fact that the city is not limited in its right of action to section 13 of the contract, disposes of this objection adversely to the contention of counsel for the surety company.

VI. The remarks of counsel for the city during the trial are pressed upon our attention as prejudicial error. To constitute such error as to influence our action in the disposition of this case the remarks or conduct must have been such as to render it reasonably probable that prejudice to the surety company resulted therefrom. The burden of this complaint, without wearily repeating the exact words charged to have been used by counsel, are to the effect that the surety company had failed to put the contractor, who was in the court-room throughout the trial, on the witness stand to question or in anywise vary the testimony of the experts examined by the city in proof of the cost of the completion of the work.

Whether this be construed as a comment on the conduct of a party to the suit, or as a failure to in-' troduce the contractor as a witness, the rule as to the propriety of the remarks is the same. In alleged errors of this character it must appear that the prejudicial effect of same was sufficient to influence the rendition of the verdict; otherwise, it will not be regarded as material. [Gulf, C. & S. F. R. R. Co. v. Curb, 66 Fed. 519, 13 C. C. A. 587.] In the application of this rule liberal latitude is allowed counsel in their deductions from the evidence. [Jaggard v. Railroad, 264 Mo. 142.] While the cases are not numerous on this subject, the rule is nevertheless well established' as to the right of counsel to comment upon the failure of a party to testify in his own behalf in a civil action. Only impliedly has the question been passed upon in this court. In Scullin v. Wabash Ry. Co., 184 Mo. 695, it was held that the remarks of counsel for the plaintiff, who in his argument stated that defendant could have gone to the scene of the accident and with the same train determined within what distance it could have been stopped and then could have brought its witnesses and had them swear to this fact, were not such a violation of legitimate argument as amounted to error. The Kansas City Court of Appeals has more directly passed upon this matter. In Stagner v. Rich Hill, 119 Mo. App. 281, an action against a city for injuries from defects in a sidewalk, it was held that it is not improper for plaintiff’s counsel to refer to the non-production of some of the city officials as witnesses on the subject of notice of the condition of the sidewalk. Elsewhere the subject has received more conclusive consideration. In Hull v. Douglass, 79 Conn. 266, it appeared that the defendant was present in the court-room during the trial and failed to testify in denial of any of the testimony produced by the plaintiff or to offer any explanation for his failure so to do. The court ruling upon same, held that plaintiff’s counsel had the right to refer to this fact in his argument as well as to emphasize it; the court’s.language being as follows: “It was fairly within the latitude allowed to counsel in argument to call it a refusal on the defendant’s part to take the stand in his own defense.” In North Carolina it is held in a number of cases that the failure of the defendant to testify is a legitimate subject of comment before the jury, subject to the control and discretion of the presiding judge. [Ledford v. Emerson, 141 N. C. 596; Hudson v. Jordan, 110 N. C. 250; Goodman v. Sapp, 102 N. C. 477.] To a like effect see: Lynch v. Peabody, 137 Mass. 92; Railroad v. Partlow, 14 Rich L. (S. C.) 237; Gilman v. Williams, 74 Vt. 327. No different principle is involved when the remark is applied to a failure to introduce the testimony of a witness other than a party to a suit. [Ledford v. Emerson, supra; Devries & Co. v. Phillips, 63 N. C. 53.]

The remark complained of that the “American Surety Company was incorporated in this State to do business for hire” cannot under a reasonable interpretation of same be held to have been prejudicial. It was but a characterization of the company’s nature and the purpose of its creation. This was certainly permissible and in making it counsel did not state other than the truth or under the guise of argument assume the functions of a witness. The words employed do not indicate that they were expressed in a manner to which serious protest can be urged. The objection to same must therefore be held to be trivial.

VII. The surety company complains of the refusal of its instructions numbered 7 and 8, which submitted to the jury the question as to whether the jia(^ n0£ entered into another and a *; . different contract with the same contractor subsequent to the making of the original contract for the performance of the same work without notice to or the approval of the surety company; and if they so found, their verdict must be for the latter. Whatever may be said as to the correctness of these instructions in view of the terms of the original contract and the facts in relation to the so-called second contract, there is no merit in this contention. The trial court had theretofore given the city’s instruction numbered 9, which clearly and succinctly submitted this issue to the jury. No error can be predicated upon the refusal of these instructions, therefore, when the material features of same were embodied in others given. Mere iterations of what has already been clearly declared serve rather to confuse than enlighten and are therefore unnecessary. [Beauchamp v. Pike County, 251 Mo. l. c. 538; Downs v. Tel. Co., 161 Mo. App. l. c. 282; Murphy v. Clancy, 177 Mo. App. l. c. 446.]

A like reason authorized the trial court to refuse the surety company’s instructions numbered 12 and 13, as to what constituted a failure to make payments for work performed under the terms of the contract and the consequent nonliability of the surety company if such proof satisfied the jury. These instructions were covered by the surety company’s instruction numbered 10, which had been given by the court. When an issue has been definitely defined for the guidance of the jury, the refusal of instructions in detail comprehending the same subject will not constitute error.

VIII. It is contended that changes in the construction of the system agreed to by the city and the contractor subsequent to the execution of the contract released the surety company from liability. Not only the contract, but the bond as well, as is evidenced by a copy of the provision in regard thereto, set ont in its own words in the statement of the facts, provided that extensions as to time, alterations in, additions to, or omissions from the work as required in the contract, plans and specifications should not violate the bond' or discharge the surety company, although made without the consent of the latter.

The surety company in signing the bond made this provision as much a part of its agreement as any other portion of the obligation. What was shown to have been done thereunder was, therefore, with the express assent of the surety company and did not change its obligation. [Howard County v. Baker, 119 Mo. l. c. 405; Hax-Smith Furn. Co. v. Toll, 133 Mo. App. 404; Ashenbroedel Club v. Finlay, 53 Mo. App. 256; Reissaus v. Whites, 128 Mo. App. 135; Fidelity Co. v. Robertson, 136 Ala. l. c. 409; People’s Lumb. Co. v. Gillard, 136 Cal. 60; Lumber Co. v. Surety Co., 124 Iowa, 619; Kretschmar v. Bruss, 108 Wis. 396; Blauvelt v. Kemon, 196 Pa. St. 128.]

The exception to this rule is when it appears that the changes made are so extensive as to substitute a different contract from the original. [Swasey v. Doyle, 88 Mo. App. 536; Miller-Jones Furn. Co. v. Ice Co., 66 Ark. 287; Consaul v. Sheldon, 35 Neb. 247; House v. Surety Co., 21 Tex. Civ. App. 590.] There is no evidence of such changes here. On the contrary, expert witxiesses testified that the changes were advantageous to the contractor, in that they entailed no additional time and lessened the cost of construction. When this is the case the rule is not applicable even in the absence of an agreement as to the changes by the surety; the test of the application of the rule generally being evidence of such a change as will increase the surety’s burden either iix the cost of coxxstruction or an extension of the term of performance. [Benjamin v. Hillard, 23 How. (U. S.) 149; Prescott Nat. Bank v. Head, 11 Ariz. 213, 21 Ann. Cas. 990.] Absent these, there is no injury and hence no ground of complaint. The surety company, however, is precluded from making this defense under the facts herein. In its instruction numbered 9, given by the court, this question of a release on account of changes was squarely submitted to the jury which found against the contention of the surety company. That this instruction fairly submitted the facts in regard to the changes cannot be questioned by the surety company. The jury’s finding, therefore, is binding on this court and will not be disturbed. [Diamond v. Mo. Pac. Ry. Co., 181 S. W. (Mo.) 12; Nichols v. Thompson, 181 S. W. (Mo.) 385.]

IX. The rule as to the binding effect of the jury’s finding is also applicable to the contention that the city failed to comply with its contract in regard to the manner of payment for work performed and hence that the contractor was reieased from its obligation. There was evidence pro and con on this subject and the matter was submitted to the jury in instruction numbered 10 requested by the surety company. The verdict of the jury constitutes a finding contrary to the contention of the surety company that payment had not been made in whatever amount was due the contractor at the time of his refusal to continue the work, and further controversy in regard thereto is foreclosed. [Britt v. Crebo, 199 S. W. (Mo.) 154.]

The latitude indulged in by both parties in the trial of this case and the loose manner in which p-Qgjnegg was conducted by the city and the contractor subsequent to the execution of the contract, as evidenced by the record, necessitated our combing this voluminous transcript that a fair determination of the matter at issue might follow. Familiar with the facts, therefore, we have reached the conclusion that the court below was not. authorized in granting a new trial. We therefore direct that the verdict of the jury be reinstated and that a judgment be entered in accordance therewith. It is so ordered.

Reversed and remanded with directions.

All concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    KANSAS CITY DISINFECTING & MANUFACTURING COMPANY, Appellant, v. BATES COUNTY.
    Division Two,
    February 16, 1918.
    1. APPEAL: Assignments: No Ground Stated. A mere assignment in his brief that the trial court erred in refusing certain instructions offered by appellant, or a general assignment in his motion for a new trial that the court refused proper declarations of law offered by him, is not a sufficient assignment of error, even in a civil case.
    2. -: Objections to Evidence: No Ruling, If the testimony offered by respondent was admitted “subject to objection” by appellant, coupled with an opinion expressed by the court, sitting as a jury in a law cash, that it was not admissible, and appellant made no further effort to obtain a definite ruling and none was made, it cannot be determined on appeal that the testimony was considered by the trial court in reaching his findings, and, hence, that the admission of the testimony, under the circumstances, was error.
    3. SHERIFF: Necessaries for Poor Farm. The sheriff, without an order from the county court, has no authority to purchase articles necessary for the maintenance of the poor farm or poor house, so as to bind the county to pay for them.
    4. -: Necessaries for Court House, In the absence of any proper assignment, it will not be held on appeal that the trial court erred in holding that the statute making it the duty of the sheriff to furnish fuel, stationery and “other things necessary for the use of the court” did not authorize him to purchase large quantities of insecticide for disinfecting the court house, without an order of the county court.
    Appeal from Bates Circuit Court. — Hon. G. A. Galvird, Judge.
    Affirmed.

      W. O. Jackson for appellant.
    (1) The sheriff had power to bind the county. Harkreader y. Vernon County, 216 Mo. 696; Ewing y. Vernon County, 216 Mo, 680; Motley v. Pike County, 233 Mo. 42; R. S. 1909, see. 109, 1571 and 4065. (2) It was error to admit evidence against the plaintiff to show that the sheriff had other disinfectants on hand, there being no evidence that the plaintiff knew anything about it. (3) It was error to admit evidence to show the prices of other goods recommended. Besides, the evidence shows that this was the only goods that did the work. (4) The refusing of instructions one, two and three, offered by the plaintiff, was error.

      D. C. Chastain for respondent.
    Upon the evidence the verdict was right. We do not dispute that upon some conditions the sheriff would have the right to purchase supplies, but his right to purchase and bind the county should be held within the strictest limits, since under the statute, Section 2778, the contract was invalid. Those who deal with public officials must take knowledge of the limitations on their powers. The plaintiff knew that this disinfectant was intended by the sheriff to go to the court house, where certainly a bug exterminator was not necessary, and to the poor farm places with which the sheriff had nothing to do. Sec. 4081, R. S. 1909.
   FARIS, J.

Plaintiff sued Bates County for the sum of one hundred and forty dollars, being the purchase price of seventy gallons of “Killbug Insecticide,” bought in September, 1911, by a sheriff of that county for use in the jail, the poor house and the court house. On a trial before the circuit court, sitting as a jury, judgment was rendered in favor of plaintiff’ for the sum of twenty dollars only, and plaintiff appealed.

The facts are brief, but unique and illuminating. Whether the case originated in the county court and travelled thence to the circuit court by appeal, or whether it was begun originally in the circuit court, is dark and doubtful. Be this as may be, the proceeding is bottomed upon an account for bug exterminator, which, date and merely ornamental externals omitted, reads thus:

“Sold to Bates County, Missouri, 70 gallons Kill-hug Insecticide at $2, $140. Killbug Insecticide, guaranteed by the K. C. Disinfecting & Mfg*. Co., under the Insecticide Act of 1910. Serial No. 175.”

To this account is appended the O. K. of one W. J. Bullock, with the statement, to-wit: “I ordered and received the above bill of goods for Bates County, as Sheriff.” ,

Upon the trial the president of plaintiff testified by deposition, and in order, possibly, to show the extent of the infection, he stated that plaintiff sold “this Killbug” to numerous counties in Missouri, Oklahoma and Kansas, and the witness “judged” that a seventy-gallon order was “a reasonable supply for a county like Bates County.” The witness stated that being advised that “these goods” would be delivered for use to the jail, the poor farm, and the court house, he shipped the goods in ten-gallon cans, so that twenty gallons could be conveniently sent to the jail, twenty gallons to the poor farm, and “so much” (meaning the remainder probably) to the court house. Plaintiff took the order from one, the said Bullock, then sheriff of Bates County, through a certain C. W. Meyers, as agent, to which latter, as a commission for obtaining the order from Bullock, forty per cent of the amount of the order, or $56, was paid. Speaking of the valuable and lethal qualities of what the witness amiably but perhaps euphuistically denominated “these goods” he said:

“If there are any roaches shows up (sic) around the building it is used for them. If there are prisoners brought in, they spray their clothes and sometimes, as you know, it is necessary to spray their person with it too. It is an insecticide. We sell it for insecticide, but it is a standard disinfectant. You can use it in a room like this, or any other room, say where one has 'had smallpox, or something like that. It is not for toilets, it is too expensive for that. It is all right to be used for that, but we do not recommend it for toilets, it is too expensive . . . The name shows it will hill any bugs or germs it comes in contact with, any insects.” It also sufficiently appeared from this witness’s testimony, that many demands had been made upon defendant for payment, but that payment had never been made.

Bullock, sheriff when the “Killbug Insecticide” was purchased (utterly reckless of the inherent prohibitive richness of this concoction as a deodorizer for sewers et id omne genus), testified that he bought it as a disinfectant, or deodorizer, to discourage an offensive odor which came from the jail sewer, which sewer passed through or near the basement kitchen of the jail, wherein the witness resided. He also said that during his term of office he might have bought as much 320 gallons of disinfectant, and that there was already a barrel on hand when the witness took office, which latter, however, he had never used because he did not recognize it as disinfectant, but thought it was bridge paint He was, he said, compelled to administer this insecticide to this sewer in portions of three or four gallons at a time.

Other testimony came into the case (over plaintiff’s objection, but subject thereto), to the effect that when the case was tried (some two years after the sale here under discussion), there were yet on hand of divers disinfectants more than 320 gallons, a supply, some of the witnesses say, more than sufficient to last Bates County for ten years. Of this supply on hand more than 60 gallons thereof were made up of the remainder of the identical seventy gallons of Killbug Insecticide bought from plaintiff and now here in dispute. Testimony also came in over plaintiff’s objection and which was likewise admitted subject thereto, that the usual and customary price of standard disinfectants was from seventy-five cents to one dollar per gallon. Other necessary facts, if such there be, will be set out in our discussion.

Plaintiff complains that the court erred in refusing instructions numbered one, two and three, which were offered by plaintiff, but learned counsel does not favor us with any reasons for the. faith which we assume is in him, nor does he furnish us with any authorities for the position which he takes. He merely assigns the error and lets it go at that. 'Moreover, the only assignment of error in plaintiff’s motion for a new trial which is at all apposite, is the general one that “the court refused proper declarations of law offered by the plaintiff.” This is not sufficient as an assignment of error, even in a civil case. [Polski v. St. Louis, 264 Mo. 458; Wampler v. Railroad, 190 S. W. 908; State v. Rowe and Sanders, 271 Mo. 88.]

It is also urged that it was error in the court nisi to admit evidence tending to show- that at the time the “Killbug Insecticide” here in question was bought by the sheriff, he had on hand more than 250 gallons of other disinfectants and insecticides. Likewise that it was error to admit evidence of the price at which other disinfectants were selling at the date of this purchase. Regardless of whether there be inherent error in admitting this evidence or not, it was all admitted by the court “subject to the objection” of plaintiff. In one case the trial court expressed the opinion that the evidence was not admissible, but admitted it subject to plaintiff’s objection. Plaintiff made no further •effort to obtain a definite ruling, nor was any such definite ruling at any time made upon plaintiff’s objections by the trial court. In such case we cannot know whether the court considered this evidence or not. His language when he came to render judgment would indicate that he did not allow it to enter into the case as a deciding factor.

No other errors are called to our attention, although it is suggested^ apposite to the whole case mayhap, but not in such wise as to call for review by us, that the sheriff had power to bind the county. It is probable that even this suggestion is too broad a statement of the controlling law. We took occasion to say in the case of Lamar Twp. v. Lamar, 261 Mo. l. c. 189, that:

“Officers are creatures of the law, whose duties are usually fully provided for by statute. In a way they are agents, but they are never general agents, in the sense that they are hampered by neither custom nor law and in the sense that they are absolutely free to follow their own volition. Persons dealing with them do so always with full knowledge of the limitations of their agency and of the laws which, prescribing their duties, hedge them about. They are trustees as to the public money which comes to their hands. The rules which govern this trust are the law pursuant to which the money is paid to them and the law by which they in turn pay it out. Manifestly, none of the reasons which operate to render recovery of money voluntarily paid under a mistake of law by a private person, applies to an officer. The law which fixes his duties is his power of attorney; if he neglect to follow it, his .cestui que trust ought not to suffer. In fact, public policy requires that all officers be required to perform their duties within the strict limits of their legal authority.”

It is not doubted that the statutes (Secs. 1571 and 1573, R. S. 1909) and the construction thereof by this court in a ease to an extent analogous (Harkreader v. Vernon County, 216 Mo. 696) furnish authority to a sheriff of a county to purchase such articles and supplies as are requisite and necessary to keep and maintain the county jail “in good and sufficient condition and repair.” But such authority, absent an order of the county court, which might pro hac vice make him its agent, would not extend to purchases made for the poor house or the poor farm, the custody and control of which are vested by statute in the county court, and not in the sheriff. [Sec. 1343, R. S. 1909.] Likewise, the county court is by statute vested with the control of the court house (Sec. 4081, R. S. 1909), and while it is made the duty of the sheriff ‘ ‘ to furnish fuel, stationery and other things more necessary for the use of the court” (Sec. 3887, R. S. 1909 ), this duty is delimited by the appended provision directing performance thereof “whenever ordered by the court.” [Sec. 3887, supra.] This latter conditional duty is disassociated from control of the premises and it a general one which the sheriff owes to the circuit court, to the probate court, and even to the county court itself, though the latter court is the general statutory contracting, auditing and fiscal agency of the county. Clearly, such an order should either be express, or plainly implied from the necessities of the situation.

If so it be that “Killbug Insecticide” is connoted within the extremely general designation of “other things necessary,” as contained in the statute last above mentioned (touching which we venture no opinion), we are able to appreciate the pertinency of the qualifying provision, that a sheriff in furnishing such other necessary things should act only whenever ordered by the court. For it would be to place too great a burden upon even a sheriff’s omniscience to require him to know when “Killbug Insecticide” becomes an absolute necessity for the sanitation and comfort of any of these several courts. On the other hand it might well happen that the duty of providing seventy gallons of “Killbug Insecticide” for the immediate use of a court would become upon occasion so urgent and pressing as to furnish legal warrant for the sheriff’s acting without a solemn order of the court to that end, and that such act might in law be excused upon the ground of necessity, or even, if we may borrow a term from the criminal law, upon the ground of self-defense.

But these important puzzling arid conflicting questions are not confronting us. We merely suggest them as considerations of grave importance to all courts, whom sheriffs are required to serve, reserving our solemn adjudication till a concrete case shall arise wherein we shall meet these points face to face. Since no errors are urged in a manner meet for review, the case ought to be affirmed. .Let this be done.

All concur.


author: ROY, C.

text:
    ALICE J. ANDERSON v. NATHAN J. HALL, Appellant.
    Division Two,
    February 16, 1918.
    1. CONTRACT: Sale of Land. The whole of a contract; for the conveyance of real estate must be in writing. Its terms cannot be eked out by parol.
    2. -: -: Acceptance. A definite offer to pay $54,000 for a farm, $20,000 in cash, balance in one and two years, evidenced by purchaser’s notes, secured by vendor’s liens, contained in a letter to the vendor’s agent, is definite enough, and if accepted, even by parol, is binding on the vendee.
    3. -: -: Letter to Own Agent: Delivery. A letter from the purchaser to his secretary, offering to buy a certain farm at a designated price, “if I can raise the money,” is not binding on hiin, even if it could be held to be definite in terms, because not delivered to the vendor or the vendor’s agent. It is not a “memorandum or note” properly signed by the party to be charged and accepted by the other, such as the statute contemplates. Nor is it a written contract, because not delivered to the vendor.
    4. -; -; -; -: Physical Possession by Other Party. A letter by the purchaser to his secretary, in which, in response to a letter from the vendor’s agent, he expresses his willingness to buy a farm upon definite terms, which by telegram are accepted by said vendor’s agent, cannot rightfully pass into the possession of the vendor without the purchaser’s consent or direction, and if in some undisclosed way the vendor obtains physical possession of it and offers it at the trial the possession is not lawful. Delivery of a written contract cannot be made by such methods.
    5. -: -: Memorandum and Written Contract: Difference. A memorandum or note properly signed by the party to be charged and accepted by the other, even though the acceptance be oral and even though it remain after acceptance in the possession of the person so signing it, will bind the person to be charged to keep the contract for the purchase of land. But there is a wide difference between an oral contract to purchase land followed by a written memorandum, signed by one of the parties and accepted by the other, and a written contract. A memorandum presupposes a previous oral contract; the written contract, or one made by letters, does not. In order for a written contract to be complete, it must, besides being signed by the person to be charged, be delivered; and if not delivered to the other party, or his authorized agent, it is not binding on the signer.

      Appeal from Jackson Circuit Court. — Hon, Thomas B. Buckner, Judge.
    Reversed and remanded.

      Otto Basye and Ben T. Hardin for appellant.
    (J) -There is no contract in this case that satisfies the Statutes of Frauds. No land is described, nor is the county or the state named. The essentials of a contract involving the Statute of Frauds are...three, as laid down by this court: “First, the parties; second, the subject-matter; third, the consideration or price. Absent any one of these ingredients, there is no contract.” Kelley v. Thuey, 143 Mo. 435; Fox v. Courtney, 111 Mo. 147; Johnson v. Fecht, 185 Mo. 335; Ringer v. Holtzclaw, 112 Mo. 519; Boyd v. Paul, 125 M6. 9; King v. Wood, 7 Mo. 390; Dixon v. Finnegan, 182 Mo. Ill ; Halsell v. Renfro, 202 U. S. 287; Preston v. Preston, 95 U. S. 200; Williams v. Morris, 95 U. S. 444. (2) In real estate contracts the rule is well established that parol testimony cannot supply what the written contract lacks. The statute changed the common law in that respect. The written contract must be complete in itself, or refer to some external standard, such as a public record, in order to let in parol testimony. Boyd v. Paul, 125 Mo. 9; Cement Co. v. Kreis, 261 Mo. 160; Reigart v. Coal Co., 217 Mo. 142;. Culligan v. Wingerter, 57 Mo. 241; Kennedy v. Kennedy, 57 Mo. 73; Smith v. Snell, 82 Mo. 215; Fireproofing Co. v. Fireproofing Co., 177 Mo. 559; Springer v. Kleinsorge, 83 Mo. 152; Briggs v. Munchon, 56 Mo. 467; Wiley v. Roberts, 27 Mo. 388; McKeag v. Piednor, 74 Mo. App. 593; Schultz v< Hunter, 188 Mo. App. 520; Mason v. Small, 130 Mo. App. 249. There is no sufficient offer in this case and no sufficient acceptance of any alleged offer. The acceptance must be in the exact terms of the offer in order to constitute a binding contract. Sarran v. Richards,' 151 Mo. App. 656.

      Joseph S. Rust for respondent.
    (1) All the letters and telegrams may he taken together in determining as to sufficiency of the description. Anderson v. Hall, 188 S. W. 79; Leesley v. Fruit Co., 162 Mo. App. 195; Peyeke v. Ahearns, 98 Mo. App. 459. (2) Parol evidence may be introduced to make the contract more definite and certain where the uncertainty grows out of latent ambiguity. If the contract showed on its face that there were two farms of same name it would be a patent ambiguity. Black v. Crowther, 74 Mo. App. 480; Atkins v. Moran, 67 Mo. 100; Martin v. Kitchen, 195 Mo. 477; Roden v. Helm, 192 Mo. 82; Turner v. Dixon, 150 Mo. 416; (3) Hnder the Statute of Frauds the writing as to real estate need only to be signed by the party to be charged. The proposal may be accepted by parol. R. S. 1909,'sec. 2783; Martin v. Grimes, 88 Mo. 478; Smith v.’ Wilson, 160 Mo. 657. If memorandum is signed by the party to be charged the acceptance may be by parole. Black v. Crowther, 74 Mo. App. 480.
   ROY, C.

Plaintiff recovered judgment against the defendant for $10,160 as damages for the breach of his alleged contract to purchase and pay for a farm. Defendant has appealed.

The case was here on a former appeal and is reported in 188 S. W. 79.

The plaintiff, in writing, leased to J. H. Lipscomb of Kansas City a farm of about 800 acres at Aullville, Lafayette County, in this State, for a term of three years ending on March 1, 1911. In the same writing she gave Lipscomb an option on the land at $36,000, and gave him also the power to sell the farm any time during the lease, he to have all excess over that sum. The evidence on both sides shows that said farm was sometimes called the “Jo Shelby farm,” and sometimes called the “Anderson farm.”

Defendant was a resident of Kansas City, but spent much of his time looking after his live stock interests in Texas. He had a secretary and financial agent, R. B. Thornton, in Kansas City, who paid his accounts and furnished defendant’s family with money from defendant’s funds as they needed it. Lipscomb took the defendant and defendant’s daughter over the farm to inspect it. He also took Thornton to see it. Lipscomb testified that he was paying Thornton a commission in the matter. There is no evidence in the case to indicate that defendant knew that his agent Thornton was in the pay of the other side.

We will now set out the correspondence between the parties, giving all the contents of the letters so far as they are material here, and leaving out the remainder.

Exhibit 2.

■ May 10, 1909.

Mr. Nathan Hall,

115 Garfield Ave., City.

My dear Mr. Hall: —

From the conversation I had with your daughter, 1 know that she wants very much the 800-acre farm at Aullville, but I am also satisfied that she will be governed entirely by what you say.

J. H. Lipscomb.

Exhibit 3.

September 18, 1909.

Mr. Nathan Hall,

Junction, Texas.

My dear Mr. Hall:

1 suppose, of course, that you have abandoned the idea of purchasing the 800-acre farm, but I would regard it as a great personal favor if you would send me the letter which Mr. White wrote in answer to yours to him asking about the Lafayette County farm.

J. H. Lipscomb.

Exhibit 4.

Junction, Texas, September 26, 1909.

Mr. J. H. Lipsc'omb,

K. C., Mo.

Dear Sir:

I have abandoned the idea of purchasing Anderson farm at price asked. If you want to present another offer to Mrs. Anderson I will make you a proposition. I will give $54,000 for the farm provided I could get possession any time soon in payments as follows:

$20,000 down, the balance vendor lien notes payable on or before two years at 5 per cent interest. Complete abstract and titles to be furnished at her expense. If this proposition suits you I will take chances on buying the farm.

N. J. Hall.

Exhibit 5.

December 15, 1909.

Hr. Nathan Hall,

Richland Springs, Texas.

Dear Sir:

On November 30 I wrote you what I thought was a very persuasive letter but it seems that I was entirely mistaken and you have not even answered it. I do not like to take your failure to answer my letter as a refusal on your part to buy the farm.

J. H. Lipscomb.

Exhibit 6.

January 12, 1910.

Mr. Nathan Hall,

Richland Springs, Texas.

Dear Mr. Hall:

I am not going to take your failure to answer my last two letters as an evidence that you are not interested in the 800-acre farm nor as an evidence that you are opposed to hearing from me.

J. H. Lipscomb.

Exhibit 7.

Feb. 'll, 1910.

Mr. Nathan Hall,

Richland Springs, Texas.

My dear Mr. Hall:

If you will pay $56,000 for the 800-acre farm I will give you possession immediately; that is within 30 days, or if you do not care to look after it this year I' can allow you $2000 for rent until March 1, 1911. You offered $54,000 for the place. Please let me hear from you at once.

Yours truly,

J. H. Lipscomb.

Exhibit 8.

February 12/1910.

Mr. Nathan J. Hall,

Richland Springs, Texas.

Dear Mr, Hall:

I cannot keep from insisting on your buying the 800-acre farm, in Lafayette County,

J. H. Lipscomb.

Exhibit' 9.

Richland Springs, Texas, 2-16-10.

Mr. J. H. Lipscomb,

Dear Sir:

■ Will say yours of the 2-11-10 came to me yesterday. Now I don’t know that I can raise the amount of money necessary to buy the farm, however if the parties will come to my offer I will see if I can raise the money to comply with my offer of 54 thousand dollars. Yours truly,

N. J. Hall.

Exhibit 10.

Ferbuary 26, 1910.

Mr. Nathan J. Hall,

Richland Springs, Texas.

My dear Mr. Hall:

Your favor of the 16 th inst. at hand. I shall undertake to have your proposition accepted. Please notify me, or Mr. Thornton, just how you want the deferred payments. In your last letter you proposed to pay $20,000 cash and the balance in one or two years at 5 per cent. If I can have your proposition accepted, this arrangement as to payments will be satisfactory.

J. H. Lipscomb.

Exhibit 11.

Richland Springs, Texas, 3-2-10.

Mr. R. B. Thornton,

Dear Sir:

Your letter received also one from J. H. Lipscomb in regards to the sale of the Jo Shelby farm. You can say to Mr. Lipscomb that my offer of $54,000, $20,000 cash, balance in one and two years at 5 per cent per annum, he to furnish a complete abstract clear of all liens of all kinds. You may say to him that at the time I made him the offer I had the $20,000 in the bank, but I have been making some investments and it may take me a few days to raise this money, and I do not care to raise it unless I make this deal; and if I make the deal I will want possession at once or by April 1st at least. Now if he can close deal at once you can telegraph me and I will come and raise the money and close the trade. If I hear nothing from you or Mr. Lipscomb I will leave about the 20th for my ranch in Kimball Co. I think this is a bad trade for me as I will have to spend so much money in re, pairs on this place and if I had not of made the offer I would not make it now. Yours respectfully. In the meantime look around where I can get ten or twenty thousand or $50,000 at 4 per cent on my main street house. If I can get 4 per cent money I will pay all case (?).

Yours respectfully,

N. J. Hall.

Exhibit 12.

R. C. C. Night Message. The Western Union Telegraph Company.

K. C., Mo., March 5, 1910.

To Nathan J. Hall, Richland Springs, Texas.

Proposition to purchase Anderson farm at fifty-four thousand dollars is hereby accepted. Come at once.

J. H. Lipscomb, Agent.

Defendant objected to each and all of those documents as evidence, on the ground that they did not constitute a contract on the part of the defendant to purchase the land. The objections were overruled.

A few days after the date of said telegram the defendant came home, but refused to proceed with the deal.

At the close of plaintiff’s evidence, and again at the close of all the evidence in the cause, the defendant asked an instruction in the nature of a demurrer to the evidence which was refused.

I. The demurrer to the plaintiff’s evidence forces upon our consideration points which were not called to this court’s attention on the former appeal.

II. The whole of a contract for the conveyance of real estate must be in writing. Its terms cannot be eked out by parol. [Meramec Portland Cement & Mat. Co. v. Kreis, 261 Mo. 160, l. c. 169.]

III. We will now consider the correspondence between the parties as above set out to see if any contract in writing was agreed upon by the parties.

Exhibit 4 shows an offer by defendant of $54,000 on the terms there named for the “Anderson farm.’’ If that offer had been accepted, even by parol, it would have been binding on the defendant.

Lipscomb in Exhibit 7 refused that offer in effect by making another proposition to the defendant.

Exhibit 9 cannot be considered as a definite offer to take the land at the price named. That letter says, “Now I don’t know that I can raise the amount of money necessary to buy the farm, however if the parties will come to my offer I will see if I can raise the money to comply with my offer of 54 thousand dollars.” That language is equivalent, in effect, to saying, “If you “will now take the $54,000 for the place, I will look into my finances and see if I can take the farm at that price.”

Lipscomb, in Exhibit 10, says, “Please notify me or Mr. Thornton how you want the deferred payments,” thus showing that he did not understand that defendant had made a definite offer to take the land. In Chapin v. Cherry, 243 Mo. 375, l. c. 401, it was said:

“And as held by this court in the case of Strange v. Crowley, 91 Mo. 287, before a contract is completed or binding upon the parties thereto, there must have been a definite proposal made on the one hand, and an acceptance thereof on the other and that such acceptance must have been unequivocal, unconditional and without variance between it and the proposal made.”

It thus appears that, prior to ■ the letter from defendant to Thornton, Exhibit 11, there was no pending-definite offer on defendant’s part to take the farm. There had been one which was refused. This whole case then is dependent on the effect to be givén to Exhibit 11. That letter was not written to Lipscomb, but to Thornton, defendant’s agent. All of defendant’s previous letters as to this business had been written to Lipscomb. The defendant says in this last letter that he had received a letter from Thornton and one from Lipscomb. Why wasn’s Exhibit 11 written to Lipscomb instead of to Thornton? If that letter had been written to Lipscomb it would have been an offer in writing for the land, which, when accepted, would have bound defendant. But defendant did not take that course. He refrained from writing to Lipscomb, but, instead, wrote to his own agent, Thornton. His letter to Thornton did not, in itself, constitute a written offer to Lipscomb, because it was not to be delivered to Lipscomb, but was to remain in the possession of defendant’s agent; in other words, in defendant’s possession. In Steel v. Fife, 48 Iowa, 99, the owner of the land wrote to his agent to offer the land for sale at a certain price. The agent informed plaintiffs that he had the letter containing the offer. The plaintiffs accepted the offer and requested the agent to procure the deed to the property. ' A deed was forwarded to the agent, but it was not delivered because of some defect in the execution. Plaintiffs then sued for a specific performance. It was there said :

“It is not alleged in the petition, or claimed by counsel for the appellees, that Johnson was the agent of the plaintiffs, but that he was the agent of the defendants. This being true, the delivery of the letter to Johnson could have no other or greater effect than if it had been written and retained in the possession of the defendants. It is unquestionably true that a memorandum, agreement or deed must be executed by the party to be bound, or his authorized agent, and delivered to and accepted by the other party to take the case out of the operation of the statute and its clear intent and meaning. ’ ’

There is no evidence in this case to indicate that the letter from defendant to Thornton was ever delivered to Lipscomb. The fact that plaintiff offered it in evidence may indicate that she was in possession of it at the trial, but there is no indication as to when she obtained such possession. Even as it is, her possession is merely physicial. She has no lawful possession of it, and has never had. The law gave Thornton no authority as such agent to deliver that letter to plaintiff or her agent. In addition to that, the letter on its face says, “You may say to him,” etc. That language plainly indicates the intention that Thornton was to hold possession of the letter and not deliver it to Lipscomb.

It may be here remarked that the defendant did not then know the fact, which was avowed by Lipscomb on the stand, that he, Lipscomb, was paying Thornton a commission. It may be that a timely discovery of the fact that his trusted secretary and financial agent was in the pay of the other side caused him to proceed no further in the deal.

Our statute provides that “the agreement upon which the action shall he brought, or some memorandum or note thereof, shall be in writing.” Let it be granted that, though the contract is oral, if there is a! “memorandum or note” of it properly signed by the party to be charged, it will be sufficient. There need'be no controversy about the proposition that if two persons meet and- orally agree on the terms of the sale and purchase of real estate, and a memorandum of such an agreement is made and signed by one of those persons, such memorandum will bind the person so signing it, even though it may remain in his possession. It is, under the statute, a sufficient memorandum to bind him. But there is no oral contract in this case followed by a written memorandum of it. There is no “memorandum or note” such as is contemplated by the statute.

The difference between a contract in writing and a “memorandum or note” of an oral contract is clearly stated in Lowther v. Potter, 197 Fed. 196, where it is said:

“The statute recognizes that a contract for the sale of real estate and a memorandum or note thereof are two distinct things and requires that one or the other must be in writing. The latter presupposes a previous oral contract; the former does not. Now in a case not involving a memorandum or note of a previous oral contract, but simply whether a written contract for the sale of real estate has been made, there must be a delivery. A delivery is essential io the making of the contract for the sale. Such was the case of Newburger v. Adams, 92 Ky. 26, 17 S. W. 162. In that case the purchaser delivered to the vendor’s agents, who, in turn, handed to their principal, the vendor, a written offer to buy. The vendor indorsed on this written offer an acceptance thereof, but changing the terms as to the payment of the purchase price in a slight particular, sufficient, .however, to prevent the making of the contract had there been a delivery without more. The vendor retained the' written offer with his acceptance indorsed thereon, and thereafter the purchaser gave verbal assent to the change in terms to the vendor’s agents or to the vendor, to which not appearing. Thereafter the vendor tendered a deed in accordance with the contract, and demanded performance on part of the purchaser, and upon his refusal brought suit to enforce it. It was held that he was not entitled to the relief sought because of the nondelivery of the acceptance of the offer. Inasmuch as the purchaser gave his assent to the change in the terms of payment of the purchase price, the case was disposed of the same-as if the acceptance had made no change in the terms, so that there would have been a binding contract had the acceptance been delivered.”

That case went to the Circuit Court of appeals where that language was approved. [137 C. C. A. 451.]

For the reasons given the letter from defendant to Thornton was never, in contemplation of the law, delivered to Lipscomb, and, hence was not an offer in writing to Lipscomb to buy the land, and could not be accepted as such an offer.

The judgment is reversed and the cause is remanded.

White, G., concurs.

PER CURIAM: — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.