author: BLAIR, C. PER CURIAM.

text:
    RUFUS J. LACKLAND et al., Trustees, Appellants, v. EDWIN and RAY RENSHAW and the AMERICAN SURETY COMPANY OF NEW YORK.
    Division Two,
    March 24, 1914.
    1. SURETY COMPANIES: Bonds: Construction. The doctrine that a surety is a favorite of the law, and that a claim against him is strictissvmi juris, does not apply where a hond is executed for a consideration by a corporation organized to make such bonds for a profit. Such undertakings should be construed most strongly in favor of the obligee.
    2. -: ——: -: Building Contract: Alterations. The surety for a consideration on a bond given to secure the performance of a building contract which provided that valuations of all alterations should be made by the architects and added to or deducted from the contract price, and in case any such valuation was not agreed to the contractors should proceed upon the written order of the architects and the valuation be referred to arbitrators, is not released from his obligation because such valuations were not made before the work was done under the changed specifications, but when the work was nearing completion the contractors, a representative of the owners and the superintendent for the architects made a list of changes and agreed upon the sums to be added to or subtracted from the price — an agreement afterward approved by the architects.
    8. -: -: -: -: Payment in Installments: Archtects’ Order. Where all money paid upon a building contract went into the building, a surety for a consideration upon a bond securing the performance of the work is not released because, while the contract provided for payment in specified installments upon the order of the architects specifying in each case that the work had been done to their satisfaction, the architects’ orders did not in fact specifically certify that the work had been done satisfactorily, nor because, without the knowledge of the surety, advancements were made to the contractors.
    4. -: -: -: -: Failure to Complete Buildingi on Time: Notice. Although the bond of a surety company securing the performance of a building contract provided that upon default by the contractors in the performance of any of the terms, covenants or conditions of said contract the company should be notified within ten days, the surety is not released from liability for the contractors’ failure to pay material and labor bills, because the owner failed to notify the surety of the contractors’ failure to complete the building within contract time, time not being of the essence of tire building contract and the owners asking no damages for delay.
    5. -: -: -: —: Payments by Owners for Labor and Material: Notice. A surety company having given a bond to secure the completion of a building contract which provided that should there be any claim, after payment of the contract price, for failure of the contractors to pay material and labor bills, the contractors should reimburse the owners for payments made on account of such default, and the owners having paid such claims in excess of the contract price without reimbursement from the contractors and having notified the surety company of the claims, the company will not be released merely because the owners failed to give notice of such claims as each debt was incurred.
    6. REFERENCE: Approved Findings: Special Verdict. A referee’s findings when approved by the trial court constitute a special verdict.
    Appeal from St. Louis City Circuit Court. — Hon. James E. Withrow, Judge.
    Reversed and remanded (with directions).

      Judson & Green for appellants.
    (1) The notices of the contractor’s default given to the surety company by plaintiffs were a sufficient compliance with the terms of the bond. Grocery Co. v. Guaranty Co., 130 Mo. App. 431; Fidelity C'o. v. Bank, 97 Ga. 634; Ins. Co. v. Surety Co., 93 Cal. 7; Bldg. Assn. v. Gibbs, 119 Mich. 318; Surety Co. v. Pauley, 170 IT. S. 133; Roark v. Trust Co., 130 Mo. App. 410; 1 Brandt on Suretyship (3 Ed.), sec. 16L (2) Under the undisputed evidence in this case the referee and the trial court erred in failing to find and hold that even if the plaintiffs did not comply with-the strict letter of the bond in respect to giving notice of the contractor’s default to the surety company) yet all such defects in said notices were waived by the said surety company for the following reasons: (a) The bond sued upon in this case, having been signed by a regularly incorporated surety company and having been issued on a printed form prepared by the surety-company in consideration of a cash, premium payment, is essentially a contract of insurance and must be construed as such. Brandt on Suretyships (1905 Ed.), sec. 5; 15 Am. & Eng. Ency. Law (2 Eel.), p. 1; Bo impart v. Surety Co., 140 Mo. App. 683; Roark v. Ius. Co., 130 Mo. App. 407; 32 Cyc. 307; Shawman v. U. S. System Co., 92 Wis. 366'; Bldg. Assn. v. Obert, 169 Mo. 509; Surety Cb. v. Pauley, 170 K S. 133; People v. Rose, 174 111. 310; Davidson v. Kansas City, 133' S. W. 368; Cowles v. Fidelity Co., 72 Pac. 1032; Young v. Bonding Co., 228 Pa. 373; Land Co. v. Surety Co., 105 Minn. 213; Monro v. Surety Co., 92 Pac. 280; Surety Co. v. Scott, 18 Okla. 264; United States v. Fidelity Co., 178 Fed. 721; Peabody v. Realty Co., 126 N. Y. Supp. 349; State to use v. Turner, 10Í Md. 584; Ice Co. v. Surety Co., 159' Mich. 102; United States v. Fidelity Co., 178 Fed. 692. (b) Failure to object promptly at the time these various notices were received was also a waiver of the right to object to the form of the notices or to their lack of verification or to their failure to contain a list of items with dates, even if the surety’s pleadings had not waived it. McCullough v. Ins. Co., 113 Mo. 606; Boppart v. Surety Co., 14Q1 Mo. App. 675; Roark v. Surety Co., 130 Mo. App. 401; Travis v. Ins. Co., 32 Mo. App. 198; Deland v. Ins. Co., 68 Mo. App. 277; Breckenridge v. Ins. Co., 87 Mo. 62; Ins. Co. v. Kyle, 11 Mo. 278; Sinn v. Ins. Co., 47 Mo. 54. (3) Under the decisions of this court it was not necessary for plaintiffs to plead such waiver in their reply to the surety company’s answer, but they were entitled to show it under the plea of performance in their original petition. Andrews v. Ins:. Co., 168 Mo. 151; Suess v. Ins. Co., 193 Mo. 564; Burgess v. Ins. Co., 114 Mo. App. 1691, 1. c. 190; Rudd v. Ins. Co., 120 Mo. App. 1. (4) The referee erred in holding that the contract sued upon required that alterations in the plans and specifications could only be made on the written order of the architects. That provision of the contract only applied to changes and alterations as to the cost of which the owners and the contractor could not agree. Furniture Co. v. Toll, 133 Mo. App. 407. The alterations in the plans and specifications in this case were all made according to the strict terms of the contract and it was not necessary to obtain the consent of the surety thereto. 6 Cyc. 83; Furniture Co. v. Toll, 133 Mo. App. 407; Howard Co. v. Baker, 119 Mo. 406. (5) The position before the court of a compensated and indemnified surety company which is in the business of executing such bonds for profit is radically different from that of the old fashioned accommodation surety. Cessante ratione legis, cessat ipsa lex. Brown Legal Maxims (160); Frost on Guaranty Ins., secs. 1, 2 and 4; 32 Cyc. 307 ,and cases cited; Bldg. Assn. v. Obert, 169 Mo. 519; Roark v. Trust Co., 130 Mo. App. 401; Gro. Co. v. Surety Co., 130 Mo. App. 430; Boppart v. Surety Co., 140 Mo. App. 675; Kansas City v. Davidson, 133 S. W. 365; Brandrup v. Brazier, 127 N. W. (Minn.) 424; Monroe v. Surety Co., 92 Pac. 280; Surety Co. v. Scott, 18 Okla. 264; United States v. Surety Co., 200 U. S. 197; Surety Co. v. Pauley, 170 U. S. 133; Fidelity-Guaranty Co. v. U. S., 191 U. S. 426; People v. Rose, 174 111. 310; Bank v. Fidelity Co., 128 N. C. 366; Land Co. v. Surety Co., 105 Minn. 213; Leghorn v. Neydell, 80 Pac. 833; Walker v. Holtzlaw, 35 S. E. 754; Tebbetts v. Guaranty Co., 73 Fed. 95; Van Burén Co. v. Surety Co., 115 N. W. (Iowa) 24; Ice Mfg. Co. v. Bonding Co., 115' Ky. 863; Philadelphia to use v. Fidelity Co., 80 Atl. (Pa.) 63; Young v. Bonding Co., 228 Pa. St. 376'; United States v. Fidelity Co., 178 Fed. 721; Peabody v. Realty Co., 126 N. Y. Supp. 349; State to use v. Turner, 101 Md. 584; Ice Co. v. Surety Co., 159 Mich. 102; Rule v. Anderson, 142 S. W. 358; (a) The hired surety company is not released from liability on a building bond by pre-payments to the contractor, unless such pre-payments result in some loss or injury to the surety. Boppart v. Surety Co., 140 Mo. App. 683; Leghorn v. Nydell, 80 Pac. 833; Hand Mfg. Co. v. Marks, 36 Ore. 533; Bateman Bros. v. Surety Co., 145 Cal. 243; Philadelphia to use v. Fidelity Co., 80 Atl. (Pa.) 63; Surety Co. v. Scott, 18 OHa. 268; United States v. Fidelity Co., 178 Fed. 721; College v. Indemnity Co., 120 N. Y. Supp. 496. (b) The indemnified and compensated surety company is not released from liability on the bond by payments made to the contractor without the architects’ certificate when it affirmatively appears, as it does here, that the surety company was not damaged thereby. Surety Co. v. Scott, 18 Okla. 268; Cowles v. Fidelity & Guaranty Co., 72 Pac. 1032; Smith v. Malleston, 148 N. Y. 241; Leghorn v. Nydell, 80 Pac. 833; Surety Co. v. Loan & Trust Co., 98 S. W. 387; Philadelphia v. Fidelity Co., 80 Atl. (Pa.) 63; Boppart v. Surety Co., 140 Mo. App. 675; College v. Indem. Co., 120 N. Y. Supp. 496. (6) The weight of authority is that the burden of proof is upon the compensated surety to show that it has been damaged or prejudiced by any variation from the strict terms of the contract or bond which it claims has operated to release it from liability. Philadelphia to use v. Fidelity Co., 80 Atl. (Pa.) 63; United States v. Fidelity Co., 178 Fed. 721; Guaranty Co. v. Brick Co., 191 U. S. 416; Cowles' v. Fidelity Co., 72 Pao. 1032.

      J. I). Johnson and Loomis G. Jdhnson for respondent Surety Company.
    (1) The appellants are bound by the referee’s ‘ ‘ Findings and Conclusions of Facts ” — (a) Because in their abstract they accept the same as correct for the purpose of this appeal, (b) Because the abstract in the case is wholly inadequate to advise this court as to what was the evidence upon which the referee based his findings. Rule 13 of the Supreme Court Rules; Harding v. Bedoll, 202 Mo. 631; Hubbard v. Slavens, 218 Mo. 614. (c) The referee’s findings of fact in an action at law, when approved by the trial court if supported by substantial evidence, are conclusive on the appellate court. Bader v. Mill Co., 134 Mo. App. 143; Reifschneider v. Beck, 148 Mo. App. 736. (2) The rule which operates to discharge an accommodation surety by reason of an alteration of the terms of a contract, .without the knowledge or consent of the surety, applies as well to a compensated surety. Lonergan v. L. & F. Co., 101 Tex. 76 ; Taylor v. Jeter, 23 Mo. 244; Beers v. Wolf, 116 Mo. 184; Martin v. White, 128 Mo. App-. 125'. The only modification of the rule indulged in the case of a compensated surety is that the contract of suretyship in the event of ambiguity is to be construed against the surety. Kansas City v. Davidson, 133 S. W. 368. It is the settled law of this and other jurisdictions that there is no implied obligation on the part of a surety whether accommodation or for hire, that he has undertaken more or other than that expressed in his contract, and it is only to the extent, in the manner, -and under the circumstances pointed out in his bond that he is bound. Bauer v.-Cabanne, 105- Mo. 110; Nofsinger v. Hartnett, 84 Mo. 549; Reissons v. Whites, 128' Mo. App. 135; Beers v. Wolf, 116 Mo. 179; School Dist. v. Green, 134 Mo, App. 421; Higgins v. Harvester Co., 181 Mo. 300; Bumes Est. v. Fidelity Co., 96 Mo. App'. 467; Bank v. U. S., 164 U. S. 237; Simonson v. Thori, 36 Minn. 439; U. S. v. Am.'B. & T. Co., 32 C. C. A. 420; Backus v. Archer, 109 Mich. 666; Shelton v. Surety Co., 66 0. C. A. 94; Zeigler v. Hallaban, 131 Fed. 20'5; Garstairs v. Am. Bond. Co., 54 C. O. A. 89; Guaranty Co. v. S. B. & T. Co., 183 U. S. 421; Surety Co. v. Lang, 60 C 0. A.-625; Rice v. Fidelity Co., 43 C. C. A. 275; Indemnity Co. v. Wood, 19 C. C. A. 264; Am. Cr, Ind. Co. v. Carrollton Co., 36 C. C. A. 671; Jeffries v. Ins. Co., 22 Wall. 54; Ins. Co. v. France, 91 U. S. 401; Stearns’ Law of Suretyship, sec. 250; Dobbin v. Bradley, 17 Wend. 422; Knight Co. v. Castle, 87 N. E. (Ind.) 976. (3) He who commits the first substantial breach of a contract cannot maintain an action against the other contracting party for a subsequent failure on his part to perform. Surety Co. v. Lang, 60 C. C. A. 628; Sick v. Ins. Co., 79 Mo. App>. 612; Corrabine v. Cox, 136 Mo. App'. 376.
   BLAIR, C.

— This controversy arises upon a surety bond given to secure plaintiffs against loss by reason of any failure of the defendant contractors to perform their contract to erect a building in St. Louis. The trial court gave judgment for the defendant surety company. The questions presented relate solely to the efficacy of certain facts to release the surety from its obligation. Respondent company is in the business of acting as surety, charging a premium therefor. It had received compensation for becoming surety on the bond in suit.

The defenses and findings upon which the surety was released below will be examined in order. They must be vieAved in the light of some applicable general principles.

By the general law of suretyship, evolved at a time when sureties were all of the class whose obligations were entered into from motives of friendship and without pecuniary considerations moving to them, any change in the contract releases the surety, unless made with his consent.

“But the rule of strictissimi juris is a stringent one, and is liable at times to work a practical injustice. It is one which ought not to be extended to contracts not within the reason .of the rule, particularly when the bond is underwritten by a corporation which has undertaken for a profit to insure the obligee against a failure of performance on the part of the principal obligor.” [Hill v. American Surety Co., 200 U. S. l. c. 202.]

“The doctrine that a surety is a favorite of the law, and that a claim against bim is strictissimi juris, does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves ‘surety companies,’ their business is in all essential particulars that of insurers. Their contracts are usually in the terms prescribed by themselves, and should be construed most strongly in favor of the obligee. ’ ’ [32 Cye. 306.]

So far the decisions are in practical accord though there is a wide divergence of opinion as to the effect and application of these principles. In this case one ground upon which the surety was held released was that changes had been made in the plans without the surety’s consent.

The contract provided: “Should any alteration be required in the work shown or described by the drawings or specifications, a fair and reasonable valuation of the work added or omitted shall be made by the architects, and the sum herein agreed to be paid for the work according to the original specification shall be increased or diminished as the case may be. In case such valuation is not agreed to, the contractors shall proceed with the alteration upon the written order of the architects, and the valuation of the work added or omitted shall be referred to three arbitrators” selected in a prescribed manner.

The referee’s finding on this phase of the case is that alterations in the work were made from time to time but that the architects did not pass upon these changes and determine, before each was made, the sum to be added or deducted on account of it; that the changes were not made upon the written order of the architects, nor was arbitration asked by the contractors. He finds that in July, after the building was nearing completion, the contractors and the representative of plaintiffs and local superintendent for the architects, went over the building and made a list of changes; having made the list, the parties, agreed upon the sums to be added and subtracted. The list of changes and agreed allowances were put in writing and signed by the parties and approved and signed by the architects. The net result was the enhancement of the contract price by $391 and the payment of that additional sum to the contractors. The referee concludes his finding on this branch of the case thus: “So far as. the allowances made in this exhibit to the defendants Renshaw, for changes and alterations, are concerned, the referee believes and finds they were fair and reasonable and not in excess of their true value; but as already suggested, they were not agreed upon in the manner provided for in the contract. ’ ’

On his view, the departures from the contract made were (1) the failure of the architects to fix the increase or decrease of the contract price before the change was made; (2) that the changes were not made upon the written order of the architect; and (3) that arbitration was not requested by the contractors.

By the quoted clause of the contract, the parties had the right to alter the plans, and á fair and reasonable increase or decrease in the contract price was to follow any such alteration. The architects were to determine what increase or decrease was fair and reasonable in each case. That was, the extent of the surety’s interest. That was, done in this case. The contract does not specifically provide that the architects shall make their estimate in advance of the doing of the work under the changed specifications. Such a construction of the first sentence of this paragraph of the contract is merely an inference from the following sentence, the real function of which., however, is to provide a method whereby the contractors can be compelled to proceed in case of a disagreement.

In view of the principles above announced, it appears the learned referee applied too strict a rule on this branch of the case. The surety lost nothing, its risk of loss was in no way increased and, in fact, in the end it received the exact protection to which the contract entitled it.

In Chapman v. Eneberg, 95 Mo. App. 127, there was an express provision in the contract to the effect that “no work of any description is to be considered as extra work unless the same shall have been understood and agreed upon in writing before such work is commenced.” That case is, therefore, unlike the one at bar. The contract provision and the facts in Furniture Co. v. Toll, 133 Mo. App. l. c. 407, resemble closely those in this case, and the decision therein is in full accord with the conclusions reached above.

Another ground upon which the referee held the surety released was that plaintiffs had disregarded the contract provisions as to the payment of installments of the contract price.

The contract price was $26,838 and was to be paid in twelve installments, each falling due when the work reached a designated stage, it being also provided, ‘ ‘ that the final payment shall be made within ten days after this contract is completely finished; provided, that in such of the said cases the architects shall certify in writing that all the work upon the performance of which the payment is to become, due has been done to their satisfaction.”

In this connection the referee finds that the certificates or orders given by the architects were in the following form:

“No. 1. Office of J. B. Legg, Architect.
St. Louis, December 29, 1902.
Missouri Botanical Garden:
Pay to the order of Renshaw & Son one thousand and five hundred ($1500) x-100 dollars, on account of their contract for building your Eddy factory building-, S. W. Corner Market and Main streets. $1500.00.
J. B. Legg, Architect.”

The referee finds the orders sufficiently identified plaintiffs as trustees and sufficiently identified the building under construction but holds the failure of the architects to specifically certify that the work, upon the performance of which the payment became due, had been done to the satisfaction of the architects, released the surety, and also finds that certain payments were made in advance of the giving of the orders, and for this additional reason holds the surety was. released.

The referee expressly found that all the money paid went into the building “in the shape of work done or material furnished. ”

In Wyckoff v. Meyers, 44 N. Y. l. c. 144, the contract provided for final payment upon the architects’ certifying that the work “was completely finished.” The architects certified simply that the final payment was due under the contract, and- this was held sufficient.

In Bannister v. Patty’s Exrs., 35 Wis. 215, the contract prohibited payments except upon a certificate of the architect setting forth the amount of stone furnished and its value “and that the same is to his satisfaction.”

The court said (1. c. 226): “The certificate does not state, in terms, that the work is to the satisfaction of the superintendent, but it fixes the value thereof at the contract price, and states no objection thereto. This, we think, is equivalent to a statement that the work was done to his satisfaction.”

Other cases to a like effect are Anderson v. Meislahn, 12 Daly, 149; Tilden v. Buffalo Office Building Co., 50 N. Y. Supp. (App. Div.) 511.

Those were suits against the owner, and the certificates were held to support an action by the contractor. They are in point here because if a certificate is sufficient to enable the contractor to force the owner to pay, the contractor’s surety could not maintain that they were insufficient to the extent that payment not under compulsion would have been unjustifiable.

No particular form of certificate is required in a case like this; and no fraud on the part of the architects having been so much as suggested and the money paid having all gone into the building, as the referee finds, we hold the certificates in this case were sufficient in the circumstances and their informality did not warrant judgment for the surety.

The additional question in this connection is as to-the effect to be given the advancements, loans or payments made before the certificates were given by the architects.

The date of the first certificate was December 29, 1902.

The referee finds that on December 4th the contractors received from Mr. Cunningham, representing plaintiffs, $500; on December 13, $300, and on December 22, $300 — a total of $1100. When the contractors received their first order from the architects (for $1500) they presented it and were paid $400. Similar advancements were made on the five succeeding installments. When the tenth installment became due, the full amount had already been received by the contractors. Whenever a sum was advanced a written receipt was taken reciting that it was a loan upon the security of the next installment to become due under the contract.

These advancements were made without the knowledge of the surety, and the referee held the surety was discharged thereby.

When installments under a contract secured by an accommodation surety are paid before they are due and without the surety’s consent, the rule is well established that the surety is thereby released. In such case the injury to the surety is presumed. This is the result of the doctrine that such a surety is a favorite of the law. The retention of installments by the obligee until the work reaches the prescribed stage is said to furnish an incentive to the contractor to complete the work within the prescribed time.

Ought a presumption of injury or that the surety’s risk was increased be indulged in this case? The referee finds expressly that all these sums went to pay for labor and materials actually employed in the construction of the building. This finding conclusively disproves injury as a fact. That being true, and the presumption of injury under like circumstances in favor of an accommodation surety being indulged because of the rule that such a surety is a favorite of the law and that rule being inapplicable to a surety whose engagement is undertaken for compensation, no presumption of injury found as a fact not to have occurred ought to be indulged to release such a surety.

There is authority supporting this view. [American Surety Co. v. Scott & Co., 18 Okla. l. c. 272, 273; Monro v. National Surety Co., 47 Wash. l. c. 488, 92 Pac. l. c. 281, 282.] Concerning a like question, the Supreme Court of Washington in Leghorn v. Nydell, 39 Wash. 17, said: “Whether this [a prepayment] was a loan, as claimed by the respondent, or an advancement under the contract, as claimed by the appellant, is wholly immaterial. The money was used by the contractor in the construction of the building, and the appellant was benefited rather than prejudiced by the Irregular p ayments. ”

The surety in this, case is in no position to complain that the tenderness courts see fit to show the .accommodation surety, always an object of the greatest solicitude, is not shown to it. Its situation is entirely -different. It is to be dealt with in the light of its. real relation to the contract — an insurer of its performance.

The learned referee also held the surety discharged .on a third ground.

The bond is. conditioned to be void if the contractors performed the contract, otherwise to remain in full force and effect. Then follows: “Provided, however, and upon the following further express conditions: First, That in the event of any default on the part of the principal, in the performance «of any of the terms, covenants or conditions of said •contract, written notice thereof, with verified statement of the particular facts showing such default and the «date thereof, shall, within ten days after such default, 'be delivered to the surety at its office, ’ ’ in St. Louis.

The contract provided that the building should be «completed May 1, 1903. April 28> plaintiffs wrote the surety company stating that while the work was pro.-gressing satisfactorily yet it appeared that the payments to the contractors, as. they matured under the contract, were insufficient to meet their labor bills in 'the early stages of the building, and asking permission to pay “thesematerial hills” before-installments under the contract fell due.

On May 22 the surety company wrote plaintiffs giving permission to pay “material bills now due, upon the order of” the contractors and explaining the delay in replying by saying that it had been caused by delay in securing consent of the surety’s indemnitors. The contractors continued their work, and on June 30 plaintiffs, by their secretary, wrote the surety company, among other things, as- follows:

“We desire now to further notify you that the said Renshaw & Son are unable to perform all the conditions of their contract. First, the said contractors are unable to make the payments for labor employed and material furnished for the said building as it progresses, and in order to prevent any filing of lien claims therefor we have found, and still find it necessary, to make payments to the sub-contractors, material men and laborers directly, for their said material and services, in advance of the regular installments of payments to contractors, and to deduct the same from the installments of payments, accruing thereafter, to the said contractors.
“While we are empowered under the contract to make such payments and such deductions, we wish to notify you of the inability of the contractors for lack of adequate means, to perform their contract, forcing us to take such steps. We have prepared a list of all the liabilities of said contractors remaining unpaid and required to be paid, for the completion of said building so far as we can ascertain, which list we are prepared to submit to you for your inspection whenever desired.
“You are further notified that by the terms of their contract, in the 6th clause thereof, the building was contracted to be finished on the first day of May, 1903. It was. not finished at said date and will not be finished before about the first day of August, 1903. We understand that the contractor claims that some part of this delay was due to causes excepted iu the contract, but as no formal claim has been filed by them for such allowance, we cannot state it with more particularity.”

To this letter the surety company did not reply and in no way objected to its sufficiency until answer filed.

About August 15 the contractors ceased work on the building, and plaintiffs caused some work to be done on the building, but before the building was fully completed they wrote the surety company, September 12, referring to their letter of June 30, and stating that certain work remained to be done; that they had paid out all but about $100 of the contract price, on the contractors’ orders, for labor and materials; that there remained due and unpaid bills for material used in constructing the building and to subcontractors, amounting to $7200 to $7500, according to an itemized and verified statement enclosed.

September 16 the surety company replied stating they would take the matter up< with their indemnitors and stating they would attempt to. have the contractors “straighten the matter out at the earliest possible moment.”

October 12 plaintiffs again wrote the surety company saying the building was still uncompleted and that they had notified the contractors they must proceed within three days or they, plaintiffs, would take charge and finish the work, as the contract contemplated they might. They also notified the surety that lien claimants were serving notices and that costs would accumulate unless the matters were attended to.

In response to this letter the surety company wrote:

“Your favor of Oct. 12 with reference to bond executed for Renshaw & Son received this p. m., in which you desire an answer by Wednesday noon as to whether we desire to complete the building and pay the claims mentioned in your letter.
“Reply, we beg to say that we have conferred with Messrs. Renshaw & Son, as well as our indemnitors, concerning the completion of the building, and we are informed by them that they at one time sent men to the building for the purpose of completing the same, and that they were ordered away by your superintendent. Under these circumstances this company is powerless ait the present time to either complete the building, or to pay any alleged claims for material or otherwise.
“You can readily, no doubt, understand our position; that were we to do any work on the building, or pay any claims alleged to be due, without being directed by Renshaw & Son, or our indemnitors assenting thereto, that the latter would be released from any liability that might possibly accrue in the future to this company. This is about all we can say at this time, and of course you are at liberty to take such action with reference to the matter as you may see fit.”

The referee finds that the sums paid by plaintiffs for labor and materials which went into the building exceeded the contract price by $7473.34.

Plaintiffs are not contending for any recovery by reason of the delay of the contractors in finishing the building. The referee made a separate finding to the effect that in no event could the surety be held for any amount for such delay.

In such circumstances there is an abundance of authority for the view that failure to notify the surety of the contractors’ failure to complete the building in contract time does not release the surety. [Pulaski Hall Assn. v. Am. Surety Co., 123 Minn. l. c. 225, 143 N. W. l. c. 716, 717, and cases cited; American Surety Co. v. Scott & Co., 18 Okla. l. c. 271.]

So far as concerns the failure of the contractors to pay claims for labor .and materials, the surety company was notified of that fact in April an-d again in June. Again, and before the lien suits had been commenced, the surety was given a verified and itemized statement of the claims for labor and material then due. It refused to act, and these claims were paid, some before and some after judgment in lien suits. No expenses of litigation are sought to be recovered, however.

So far as concerns sums, expended to complete the building after the contractors refused to proceed and the surety attempted to wash its hands of the matter, no notice was required. There was no default of the contractors affecting these sums save their general default in failing to complete the building, and of this, notice was given before the payments were made.

The question is as to the sufficiency or necessity of notice of the failure of the contractors to pay the material and labor bills except such as plaintiffs paid in completing the building after they took charge.

The contract provided, among other things: “And should there prove to be any such claim after all payments are made, the contractors shall refund to the owner all moneys that the latter may be compelled to pay in discharging any lien on said premises, made obligatory in consequence of the former’s default. ’ ’

In a case very like this, so far as the question under consideration is concerned, it was held (Lakeside Land Co. v. Empire State Surety Co., 105 Minn. 213) that the entire failure to give notice of a failure to complete the work in.contract time and of failure of the contractors to pay certain labor and material bills, was not sufficient to absolve the surety.

The court said: “That the strict rule of construction is not applicable with reference to bonds issued by surety companies has become very well settled in the courts of the United States. A surety company, in the business of issuing bonds of this character, furnishes its own forms, and is presumed to be acting advisedly in the selection of the language used, and the intention of the parties will be ascertained by the rule applicable to insurance contracts. . . . When it fairly ■ apt-pears from the face of the contract what the parties intended, a strict construction of general statements or' of particular clauses will not be indulged in to vary the evident purpose to be accomplished by the instrument.”

To the same effect are some of the cases already cited and, also, Heffernan v. U. S. Fidelity & Guaranty do., 37 Wash. 477.

In view of this rule, it seems evident that the mere failure of plaintiffs to notify the surety of the unpaid claims for labor and materials as each debt was incurred by the contractors could not release the surety. Such.claims, in excess of the contract price (such only being involved here), plaintiffs had the right under the contract to pay in order to protect the property, and it was then the duty of the contractor to refund. Of these claims the surety was notified, and then attempted to step out of the matter. Every cent paid went into the building, and the contractors did not refund. This was the actual default under the contract so far as the claims now being discussed are concerned. Of this default the surety company had notice, both from plaintiffs and from the contractors, but refused to act.

The cases of National Surety Co. v. Long, 125 Fed. 887, 60 C. C. A. 623; United States Fidelity & Guaranty Co. v. Rice, 148 Fed. 206; and Beech Grove Imp. Co. v. Title Guaranty & Surety Co., 50 Ind. App. 377, 98 N. E. 373, are not in point for reasons pointed out in Lakeside Land Co. v. Empire State Surety Co., supra.

Many other decisions supporting the conclusions above announced will be found cited in Van Buren County v. American Surety Co., 137 Ia. 490.

The case of Nodaway Drainage District No. 1 v. Illinois Surety Co., 252 Mo. 543, involved a principle thought to be determinative of one important feature of this case. That case was first heard in Division and then transferred to Court en Banc and was very recently decided. In view of the fact that the opinion is concurred in fully by only two judges, the decision is not cited in support of any view in this case but this judgment has been put upon other grounds.

The referee’s findings having been approved by the trial court constitute a special verdict (R. S. 1909, sec. 2013), and the judgment is. reversed and the cause remanded with directions to enter judgment for the full penalty of the bond, and the amount due, with interest, more than equaling that penalty, the judgment ordered entered is to be discharged only by payment of the sum of $10,000. It is so ordered.

Boy, C., concurs.

PER CURIAM.

— The foregoing opinion of Blair, C. is adopted as the opinion of the court.

All concur.


source: Caselaw Access Project

author: ROT, CL PER- CURIAM.

license: Public Domain

text:
    In re BIG TARKIO DRAINAGE DISTRICT v. FRITZ VOLTMER, Appellant.
    Division Two,
    March 24, 1914.
    1. APPEAL: Final Judgment. Where the trial court heard objections to the report of commissioners and modified their report, and on the same day the appellant filed his motion for new trial and his motion in arrest, appellant’s abstract stating then that “judgment was rendered upon the finding confirming the commissioners’ report as modified by the court,” and thereupon the appellant filed his affidavit for appeal and an appeal was allowed, it is held that the appeal was from the final judgment.

      2. -: Drainage District: Report of Commissioners. Under Sec. 2038, R. S. 1909, allowing an appeal in any civil case in which an appeal is not prohibited by the Constitution, an appeal is allowed from a judgment confirming the report of commissioners in a drainage district case.
    3. JURISDICTION: Change of Venue: Drainage District. Where after a proceeding was begun in one county to establish a drainage district therein, a change of venue was taken tq another county and a decree incorporating the district was there entered, the circuit court of the first county has no jurisdiction to proceed with the appointment of commissioners and assessment of benefits and damages growing out of the establishment of the district. . Jurisdiction as to all subsequent proceedings vested in the circuit court of the county where the decree was entered.
    4. —-----: -: -: Report of Commissioners: Exceptions: Appeal: Pleading, Where the respondent’s application for the appointment of commissioners to determine benefits and damages in a drainage district case stated that the district was incorporated by a decree of the circuit court of another county, one who appeals from a judgment approving the commissioners’ report can take advantage of the court’s lack of jurisdiction despite the fact that he did not on the trial of his exceptions to the report of the commissioners offer in evidence the record of the proceedings leading up to the incorporation of the district.
    5. —--: Of Subject-Matter: Cannot be Waived. Lack of jurisdiction over the subject-matter of an action cannot be waived.
    Appeal from Holt Circuit Court. — Hon. W. G. Ellison? Judge.
    Reversed and remanded (with directions).

      H. B. Williams and Frank Petree for appellant.
    (1) The appeal was not taken from the action of the Holt Circuit Court in overruling the exceptions to the report of the commissioners assessing benefits and damages to the appellants, in which the action of the court was interlocutory and not final. The appeal was takeu from the judgment of the court approving the report of the commissioners. The finding of the court, overruling the exceptions of appellants, is shown in appellant’s abstract. After tbe finding of tbe court, tbe appellants filed their motions for new trial and in arrest, which was overruled, and thereafter “judgment was rendered upon the finding confirming the commissioners ’ report, as modified by the court. ’ ’ This showing is sufficient. State ex rel. v. Broaddus, 216 Mo. 336; R. S. 1909, sec. 5518. In fact, the respondent admits that the decree was entered. The judgment affirming the commissioners’ report assessing benefits and damages to the land within the district is the final act of the court in the disposition of all proceedings connected with the incorporation and organization of the district, and is the final and complete disposition of the case so far as the trial court is concerned. The abstract shows that the appeal was taken from this final judgment of the court confirming the commissioners’ report. It is not necessary, in order that an appeal may lie from the action of the circuit court, that the right to appeal should be specifically given in the statute providing for the organization of this drainage district. The right of appeal, not being prohibited in the statute under which these proceedings are had, is given by the general statutes providing for appeals in civil cases. Section 2038-, R. S. 1909; Railroad v. Lackland, 25’ Mo. 515; King’s Lake Drg. & Levee Dist. v. Jamison, 176 Mo. 557; Railroad v. Brick Co., 85- Mo. 322; Little Tarkio Drg. Dist. v. Richardson, 237 Mo. 49; Railroad v. Little Tarkio Drg. Dist., 247 Mo. 86; Drainage District v. Tomlinson, 245 Mo. 1; Land & Stock Co. v. Miller, 170 Mo. 240; Drainage District v. Scott, 240 Mo. 31; Drainage District v. Turney, 235- Mo. 80; Drainage District v. Railroad, 236 Mo. 94. Respondent, in its brief filed in support of its motion to dismiss appellants’ appeal in this case, sets out the provisions of the Act of 1913, in which a limited right of appeal is given. That act can have no effect upon the appeal in this case, as the appeal as taken long before the act of 1913 was passed. The law that was in force at the time this appeal was taken, placed no limitation whatever npon the right of appeal, and contained no provision whatever in reference thereto. There being no limitation upon the right of appeal, the general law in regard to the right of appeal in civil cases applies. (2) (a) The proceeding for the assessment of benefits and damages to the lands in the Drainage District is a continuation of the proceedings for the incorporation of the Drainage District. Drainage District v. Eichardson, 237 Mo. 64; Eailroad v. Drainage District, 237 Mo. 98; Drainage District v. Tomlinson, 245 Mo. 1. (b) A court takes notice of the record in the pending case. It is not necessary to offer it in evidence. 7 Ency. of Ev. 999; State v. Ulrich, 110 Mo. 350; State v. Daugherty, 106 Mo. 182; State v. Jackson, 106 Mo. 174. Even in collateral proceedings in the same case, the judgments and orders in the principal proceeding are judicially noticed. 7 Ency. Ev. 1001; Ollesheimer v. Mfg. Co., 44 Mo. Ápp-. 172; Dinkins v. "Woodenware Co., 99 Mo. App. 310; Spengler v. Kaufman, 43 Mo. App. 5. (c) Eespondent in its petition asking for the appointment of commissioners, •states that the district is a “Drainage District Corporation of Holt county, Missouri, duly created, organized and incorporated by Articles of Association, duly signed and filed, and by decree of the Circuit Court of Andrew county, Missouri.” It is elementary law that when a party pleads a fact and it is not denied by the •opposite party it stands admitted, and it is not necessary to offer proof of such fact. This proposition is so well established that it is not necessary to cite authorities. A plea to the jurisdiction, even when coupled with ■a plea to the merits, is permissible under the Missouri code, and the latter plea does not, as at common law, waive the former. Meyer v. Insurance Co., 184 Mo. 487; Johnson v. Detrick, 352 Mo. 243. The proceeding at bar is not a proceeding in personam, but is a proceeding in rem, to wit, a proceeding to subject the lands within the district to taxation for the purpose of raising money to pay the expenses of draining the land within the district, and also to condemn lands for right of way for ditches and dykes through the district. Being a proceeding in rem, consent cannot confer jurisdiction of the subject-matter, and the objection of the want of jurisdiction may be made at any time during the progress of the case, or even afterward, if the record discloses such want of jurisdiction. Meyer v. Insurance Co., 184 Mo. 487; Cable v. Duke, 208 Mo. 557. Jurisdiction over the subject-matter, or cause of action, must be conferred by law. It cannot be conferred by consent. Dodson v. Scroggs, 47 Mo. 287; Cones v'. Ward, 47 Mo. 289 ; Abernathy v. Moore, 83 Mo. 69. Where the proceeding involves the res, that court which first takes possession of the property, retains possession and the jurisdiction. Carriage Co. v. Wells, 99 Mo. App. 641; Mfg. Co. v. Powell, 98 Mo. App. 530; Railroad v. Sweet, 103 Mo. App>. 276.

      W. H. Richards and John M. Williams for respondent.
    (1) The circuit court is a court of general jurisdiction. “Jurisdiction will be presumed as to courts of general jurisdiction, unless the contrary appears of record. This presumption has greater force after lapse of time, and embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment was rendered, but of the parties also. So it will be presumed that every step necessary to give jurisdiction has been taken, although this presumption may be rebutted by extrinsic evidence, as want of jurisdiction may be inquired into. Any acts or omissions affecting the validity of the proceedings must be affirmatively shown.” 11 Cyc. 691, and cases cited; Griffin v. Franklin, 224 Mo. 667; Lower v. Coal & Mining Co., 142 Mo. App. 351; Taney v. Jones, 153 Mo. App. 206. (2) An appellate court will take notice of such facts only as are properly included in the record. It is unnecessary to cite authorities in support of this proposition. (3) The proceedings, leading up to the incorporation of the Big Tarkio Drainage District were a part of the record in that case and would have been properly included in an abstract of the record in an appeal from a decree of the court incorporating said district; but when the district was incorporated, clothed with all the powers conferred by law and, in the exercise of such powers, proceeded to have benefits and damages assessed in carrying out the purpose of its creation, the application filed in court for the appointment of Commissioners to assess benefits and damages is the first step in the record proper in this case. What had preceded in the proceeding which resulted in a decree incorporating the district, and from which no appeal was taken, is no part of the record on this appeal and could not be unless offered as evidence and preserved by bill of exceptions. (4) By appearing generally and filing exceptions to the report of the Commissioners, raising issues of fact against the confirmation of said report and by introducing testimony in support of such exeep'tions, appellant thereby invoked the exercise of the jurisdiction of the court, waived the question of such jurisdiction and will not now, on appeal, be allowed to shift his position. Drainage District v. Richardson, 237 Mo. 49. (5) The appeal was taken from an order of the Holt Circuit Court, overruling certain exceptions to the report of commissioners appointed by said court to assess benefits and damages under the provisions of chapter 41, R. S. 1909. Section 5518 of said chapter directs the court to hear such exceptions in a summary manner, which was done in these cases, the report being amended in some particulars, and then approved. This order of approval, or confirmation, was interlocutory only, and was not a final judgment. No provision was made in this section or in said chapter for an appeal. “Appeals are purely statutory. No right of appeal existed at common law.” Miller v. Transit Co., 216 Mo. 103; Drainage District v. Railroad, 216 Mo. 709; Ackerman v. Green, 201 Mo. 231. The statute provides that “all exceptions shall be heard by the court and determined in a summary manner so as to carry out liberally the purposes and needs of such drainage district.” The drainage law is a special statutory proceeding complete in itself and as no appeal was allowed from an order of the court approving and confirming the report of the commissioners and overruling the exceptions thereto, no such right of appeal existed at the time of the alleged appeal in this case. Ackerman v. Green, 201 Mo. 231. The statute prescribing the duties of the commissioners requires them to assess benefits and damages which will accrue to each tract of land affected and also the damages to such tract. The commissioners did so assess benefits and damages as shown by their report, but the court in its order overruling the except tions and confirming the report expressly excluded the element of damages allowed and therefore such order did not dispose of the whole case, was merely interlocutory and not a final judgment from which an appeal will lie. Railroad v. Railroad, 94 Mo. 535; State ex rel. v. Edwards, 104 Mo. 125; St. Joseph v. Halsey, 150 Mo. App. 359.
   ROT, CL

— This is a proceeding to assess benefits and damages to appellant’s land, growing out of the establishment of the Big Tarkio Drainage District. The appellant is the owner of land in the district. On November 18, 1909, a proceeding was begun in the circuit court of Holt county to establish said district. A 'change of venue as taken to the circuit court of Andrew county, where, at the regular February term, 1910, a decree was entered incorporating said drainage district. A certified copy of that decree with a plat of said district was filed in the office of the county clerk of Holt county on March 23, 1910. No further proceeding appeared of record in the circuit court of Andrew county in said cause. On August 1, 1910, the district corporation filed with the clerk of the circuit court of Holt county an application for the appointment of commissioners for viewing the land in said district and assessing benefits and damages accruing to the lands therein by reason of the proposed improvements. The application states that the drainage district was incorporated by a decree of the circuit court' of Andrew county. On August 4, 1910, that application was presented to the Hon. Wm. 0. Ellison,- judge of the Fourth Judicial District and of the circuit court of Holt county, and said commissioners were then and there appointed by said judge, and on September 30, 1910, they made their report of tbeir proceedings as such commissioners to said court, showing the total benefits to said appellant’s land, amounting to $5715, and the total damages $2740, leaving the net amount of benefits $2975. On October 31,1910, and in due time, the appellant filed his objections and exceptions to said report, the substance of which exceptions was as follows:

“First: None of the land included in the pretended drainage district and belonging to this exceptor and lying and being situate in Holt county, Missouri, was ever adjudged to be included in a corporation by the circuit court of Holt county, Missouri; nor by any other circuit court having any jurisdiction to declare such incorporation of the lands situate within said county; that no notice of any meeting of the landowners within said pretended drainage district was ever called within thirty days, or any other time, by the clerk of any circuit court ‘declaring said pretended drainage district a corporation,’ and no authority was ever granted by :law to the clerk of the circuit court of Holt county, Missouri, to issue any notice of the time and place of meeting of landowners in said pretended drainage district, to meet and elect a board of' supervisors; that the pretended board of supervisors of. said pretended drainage district never met, within the time and at the place required by law, and organized as required by law; that said pretended board of supervisors did not, within the time and manner prescribed by law, proceed to appoint a chief engineer for said pretended drainage district, as required by law.
“Exception 2. Many of the persons owning land in said drainage district were nonresidents of Missouri and no personal service was ever had upon them and no legal notice of such proceeding was ever given.
“Exception 3. That no plan for drainage as required by law had ever been adopted by the board of supervisors for the drainage district.
‘ ‘ Exception 7. That the judge of this court has no power to appoint commissioners to assess the damages or benefits to the lands of the exceptors.
“Exception 8. That the said commissioners did not in the assessment of the damages and benefits proceed in the manner required by law in any respect whatever.
“Exception 9. That said assessments of benefits are wholly erroneous, unjust and without any just and lawful grounds whatever and said benefits are excessive.
“Exception 11. That the assessment of benefits •against the land of this exceptor is not bona fide, but is wholly fraudulent and without any just- basis in fact •or in law.
“Exception 12. The alleged plan of drainage is wholly impracticable and based on erroneous surveys.
“Exception 13. This exceptor now says that the •statute under which said proceeding is conducted is unconstitutional and void for the following reasons, to wit: It is provided in section 21 of article 2 of the •Constitution of the State of Missouri, that private property shall not be taken or damaged for public use without just compensation; article 3, chapter 102, of statutes of Missouri for the year 1899, as amended from time to time, now known as chapter 1.1 of the Revised Statutes for the year 1909, makes no provision whatever for the ascertaining of the damages to the lands of persons within the drainage district, but confines the authority of the commissioners to ascertaining the fair cash value of the lands necessary to be taken and used for rights of way and improvements. ’ ’

On November 11, 1910, the appellant made an application for a continuance on account of an absent witness.

On November 12, 1910, the court heard said objections and deducted from said benefits the sum of $1500. On the same day appellant filed his motion for new trial and his motion in arrest, which were both overruled.

Appellant’s abstract then has this statement: “Judgment was rendered upon the finding confirming the commissioners’ report as modified by the court.”

Thereupon, the appellant filed his affidavit for appeal to the Supreme Court, which was allowed.

I. Respondent has filed a motion to dismiss the appeal on two grounds: first, that the appeal was from the order overruling the exception to ^ie rePort °f the commissioners and not from the judgment confirming that report ; second, that there is no law allowing an appeal in this case.

Appellant’s abstract shows that the appeal was taken after the entry of judgment confirming the report. The statement in appellant’s brief concedes that fact. We conclude that the appeal was from the final judgment.

We. must rule the second point against respondent, for the reason that section 2038, Revised Statutes 1909, allows an appeal in any civil ease in which an appeal is not prohibited by the Constitution. That provision applies to a drainage ease. [King’s Lake Drainage & Levee District v. Jamison, 176 Mo. 557.]

II. The circuit court of Holt county had no jurisdiction to proceed with the appointment of commissioners and assessment of benefits and dam-a8es growing out of the establishment of the drainage district. The decree establishing such district had been rendered by the circuit court of Andrew county on change of venue from Holt county. The jurisdiction as to all subsequent proceedings in the matter of said drainage district was vested in the circuit, court of Andrew county. [State ex rel. v. Wilson, 216 Mo. 215; Tarkio Drainage District v. Richardson, 237 Mo. 49; Drainage District v. Tomlinson, 245 Mo. 1.]

Respondent insists that the question of jurisdiction is not before the court because the appellant did not on the trial of his exceptions to the report, of the commissioners offer in evidence the record of the proceedings leading up to the incorporation of the district. All controversies as to the facts in that regard are settled by the statement in the respondent’s application for the appointment of commissioners, in which it is. stated that said drainage district was incorporated by the decree of the circuit court of Andrew county.

It is insisted that appellant, by applying for change of venue, and by setting up in his. exceptions as aforesaid objections to the jurisdiction, in connection with mere matters of procedure not going to the jurisdiction, waived all objections to the jurisdiction.

The lack of jurisdiction over the person may be waived. The lack of jurisdiction over the subject-matter cannot be waived. It cannot be conferred even by consent. [State v. Bulling, 100 Mo. 87; Brown v. Woody, 64 Mo. 547; State ex rel. v. Nixon, 232 Mo. 496.]

We are aware that in Tarkio Drainage District v. Richardson, supra, it was. held that Judge Ellison’s disqualification had been waived. "Where a change of venue is taken in a cause on account, of objection to the judge of the court, the jurisdiction of the court is not assailed. It merely disqualifies the judge. Such disqualification may be waived by any party entitled to raise such objection. But where the venue has been changed to' some other court on account of such disqualification, the lack of jurisdiction in the court from which the venue was changed over the subject-matter cannot be waived.

The judgment is reversed and the cause remanded, with directions to dismiss the proceeding to assess benefits and damages.

Williams G., concurs.

PER- CURIAM.

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

All concur.


author: ROY, C. PER CURIAM.

text:
    In re BIG TARKIO DRAINAGE DISTRICT v. HENRY NABOR, Appellant.
    Division Two,
    March 24, 1914.
    Appeal from Holt Circuit Court. — Hon. W. G. Ellison; Judge.
    Reversed and remanded (with directions).

      H. B. Williams and Frank Petree for appellant.

      John M. Williams and W. H. Richards for respondent.
   ROY, C.

— All the material facts necessary to be passed upon in this case are the same as in the case of the same plaintiff against Fritz Yoltmer, which has just been decided. [Ante, p. 152.] For tbe reasons stated in tbe opinion in tbat case, tbe judgment is reversed and tbe cause remanded with directions to dismiss tbe proceeding to assess benefits and damages.

Williams, G., concurs.

PER CURIAM.

— Tbe foregoing opinion of Roy, C., is adopted as tbe opinion of tbe court.

All concur.


author: .ROY, C. PER CURIAM-.

text:
    In re BIG TARKIO DRAINAGE DISTRICT v. AUGUST HEINE et al., Appellants.
    Division Two,
    March 24, 1914.
    Appeal from Holt Circuit Court. — Eon. W. G. Ellison, Judge.
    Reversed and remanded (with directions.)

      E. B. Williams and Frank Petree for appellants.

      John M. Williams and W. E. Richards for respondent.
   .ROY, C.

— All tbe material facts necessary to be passed upon in tbis case are tbe same as in tbe case of tbe same plaintiff against Fritz Yoltmer, which has just been decided. [Ante, p. 152.] For tbe reasons stated in tbe opinion in tbat case, tbe judgment is reversed- and tbe cause remanded with directions to dismiss tbe proceeding to assess benefits and damages.

Williams, G., concurs.

PER CURIAM-.

— Tbe foregoing opinion of Roy, C., is adopted as tbe opinion of tbe court.

All concur.


author:
WILLIAMS, C.
      PER CURIAM.

text:
    JAMES MOORE v. UNITED RAILWAYS COMPANY and ST. LOUIS TRANSIT COMPANY, Appellants.
    Division Two,
    March 24, 1914.
    CONSTITUTIONAL QUESTION: Not Urged on Appeal: Jurisdiction. An objection to the constitutionality of a statute made in the trial court and abandoned on appeal, or not maintained by argument or specification, does not vest jurisdiction in the Supreme Court to hear the appeal.
    Appeal from St. Lonis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Transferred to St. Louis Court of Appeals.

      Boyle & Priest, T. E. Francis, Chauncey H. Clarke and W. Blodgett Priest for appellants.

      Nathan Frank and Richard A. Jones for respondent.
   WILLIAMS, C.

— This is a suit to recover damages for the death of plaintiff’s wife, alleged to have been caused by the defendants, in negligently and carelessly operating a street ear in the city of St. Louis in such a manner as to strike plaintiff’s wife and cause her death. The petition was in two counts, one count upon common law negligence and the other count upon violation of an ordinance of said city. The answer contained a general denial and the further allegation that whatever injuries, plaintiff’s .wife sustained were caused through her own carelessness and negligence. Trial was had in the circuit court of the city of St. Louis, resulting in a verdict and judgment for plaintiff in the sum of $5000. Both defendants have appealed. The appeal was taken after the jurisdiction of the courts of appeal had been increased to $7500. Upon an examination of the record, it is evident that the only point upon which the jurisdiction of this court is attempted to be based is the fact that one of defendants ’ refused instructions requested the court to instruct the jury to find for defendants on the ground that section 2865, Revised Statutes 1899 (now section 5246, Revised Statutes 1909), is unconstitutional. Upon an examination of the appellants ’ brief, we find that the constitutional question is not mentioned therein and is not relied upon or urged here as a ground for reversal.

In the case of Botts v. Wabash Railroad Company and St. Louis & Hannibal Railroad Company, 248 Mo. 56, Division One of this court in discussing a similar situation reached the conclusion that under such circumstances this court did not have jurisdiction of the. case. In that case Bond, J., speaking for the court, announced the rule, here applicable, as follows:

“An objection to the constitutionality of a statute made in the trial court, which is abandoned after appeal taken to this court, or which is not attempted to be maintained either by argument or specification of the constitutional invalidity of such statute, is merely colorable and meritless; and if held sufficient ground to vest,jurisdiction in this court, would necessarily divest courts, of appeal of their lawful jurisdiction in any case where the counsel saw fit to make such claim during the trial. The appellate jurisdiction of the courts of appeal cannot be destroyed by the injection of sham questions of unconstitutionality in the trial courts, which are not deemed worthy of presentation or argument after the case has been gotten here by that process. That is what the record shows was done in this case.' This performance does not present any real constitutional question for review in this court.”

It therefore follows that the case at bar should be transferred to the St. Louis Court of Appeals. It is so ordered.

Roy, C., concurs.

PER CURIAM.

— The foregoing opinion of Williams, C., is adopted as the opinion of the conrt.

All the judges concur.


author: WALKER, P. J.

text:
    MOORE MANUFACTURING COMPANY, Appellant, v. SPRINGFIELD SOUTHWESTERN RAILWAY COMPANY.
    Division Two,
    March 24, 1914.
    1. RAILROAD TRACK IN STREET: Monopoly. It is not unlawful for a city to authorize the construction and operation of a steam railroad in a public street, and such use is not a new servitude. The material question for determination, in a suit to compel the removal of railroad tracks laid in the street, is whether such occupation constitutes a monopoly in the use of the street by the railroad to such an extent as to impair the rights of the abutting lot owner to ingress and egress for all reasonable purposes.
    2. -: -: Character of Street Considered. The fact that factories and foundries are located along the street, and that it is used to a large extent in the transfer of their products and materials, is to be considered, in determining whether or not the street has been so appropriated by the railroad tracks as to destroy its character as a public highway; and, also, in responding to a prayer to compel the removal of the tracks, a court of equity will consider, not only the rights of the public, but also the fact that plaintiff, with full knowledge of the prior use of the street as a manufacturing street, located its building thereon and rested content with the existing conditions and use for years before making complaint.
    3. ———: -: Bringing Street to Established Grade. In determining whether the defendant railroad company should be compelled to remove its tracks laid in the street, the court will not concern itself with the fact that the portion of the street occupied by the tracks of another railroad has' not been brought up to the grade established by the city, or that the space between said other railroad’s tracks and plaintiff’s lots has not been brought to grade — the defendant having brought to grade the portion occupied by its tracks.

      4. -- — : — -: Space Unoccupied. Where there remains a space of fifteen feet between the street line and defendant’s railroad track, unoccupied by any tracks, the defendant will not be compelled to remove its tracks from said manufacturing street, if its occupancy of the tracks is not such as to impair plaintiff’s rights as the owner of lots abutting on the street and a factory thereon.
    5. -: -: Lessened Use: Loss of Business. In order for testimony as to whether the street in which defendant railroad has laid its tracks, in pursuance to a permissive ordinance, is not now used by vehicles and for general purposes as a highway as extensively as before the tracks were laid, to he considered material, it must be clear (1) that such lessened use by the public was due to the location of the tracks in the street and their occupancy by the railroad; (2) that such occupancy, so far as concerns the abutting lot owner, was by defendant; and (3) that the cessation of travel on said street has had an injurious effect upon plaintiff’s business. And if the only testimony as to the injury to plaintiff’s business consists of indefinite declarations in regard thereto, with no definite disclosure by plaintiff of the extent to which its business has been materially affected thereby, no relief can he granted.
    6. -: -: Laches. Where the city enacted an ordinance authorizing the use and occupancy of the street. by the defendant railroad with its tracks (of which ordinance plaintiff was required to take notice), and thereafter plaintiff had actual knowledge of the laying of the tracks therein and their use by defendant, and with such knowledge erected its own manufacturing plant for a distance of 250 feet along the improved street; and made no complaint for three years after such ordinance was enacted and such tracks were laid, its suit to enjoin the defendant from connecting its tracks at the ends, over a distance of about thirty feet, in the absence of evidence of substantial injury, will be barred by laches.
    Appeal from Barton Circuit Court . — Eon. B. O. Thurman, Judge.
    Affirmed.

      John P. McCammon for appellant.
    (1) The motion to strike ont part of defendant’s answer should have been sustained. Those portions of the answer to which the motion went consisted: (a) Of allegations that defendant had constructed and was operating its road from Crane to Springfield, and through the city on Water street and had expended one and a half million dollars and was constructing another line of Phelps avenue and would suffer loss if not permitted to complete its Phelps avenue line; that it had spent $10,000 grading said avenue. Such allegations, if true, furnish no defense to plaintiff’s complaint that the defendant had, in such construction, destroyed its access to its property and its business, nor to its complaint that defendant had made no attempt to ascertain defendant’s damages and pay them before constructing and operating its road in front of its property as the law requires, (b) The part following the foregoing section of the answers sought to be stricken out, was a statement that after the construction of the tracks the plaintiff had built a concrete building on its property. Just what justification defendant can find for its making access to property difficult, driving away travel, maldng approach by customers dangerous, or what defense it can find for violating the law requiring damages to be ascertained and paid before constructing or operating a railroad, in the improvement of property by the owner is not apparent. That it could be seriously considered as a defense to plaintiff’s action seems incredible. (2) The injury to plaintiff’s property and business was amply proven. The testimony was uncontradicted that travel in front of plaintiff’s property has been driven away by the danger of being overtaken or met on that street by a train when both tracks are occupied by trains or cars; that the danger from the operation of trains over the crossover and upon the defendant’s tracks, maldng flying switches and otherwise preventing the loading and unloading of wagons and the inconvenience of moving away and bringing back teams while so doing and the danger and inconvenience of access to plaintiff’s premises caused by tbe construction and operation of defendant’s tracks and crossovers, has greatly affected plaintiff’s business and thereby reduced the value of its property; that the danger and inconvenience will be still increased if defendant is permitted to build tracks between its two track ends and connect the same, completely filling the street in front of plaintiff’s property with railroad tracks; and that the location of a switch target in front of plaintiff’s office door and a frog in front of the warehouse door and the removal of cinders placed there by plaintiff from between the rails and ties in the pretended repair and maintenance of said tracks and cross- > overs, will make its access to its wareroom yet more difficult. All these facts were proven. (3) The use of the street by the defendant is inconsistent with the right of the public and with the right of the plaintiff. Dubach v. Railroad, 89 Mo. 483; Lockwood v. Railroad, 122 Mo. 86; Lumber Co. v. Railroad, 129 Mo. 455; Knapp-, Stout & Co. v. Railroad, 126 Mo. 26-; Refining Co. v. Elevator Co., 82 Mo. 124; Morie v. Transit Co., 116 Mo. App. 24; Oorbey v. Railroad, 150 Mo. 465; Sherlock v. Railroad, 142 Mo. 172. (4) The defendant, before locating or constructing its railroad upon Phelps avenue or across Washington avenue, was compelled to obtain the consent of the city, council. R. S. 1899, sec. 9250; State ex rel. v. Railroad, 206 Mo. 251; Dubach v. Railroad, 89 Mo. 488-. The ordinance passed in pursuance to the statute provides that no such railroad or street railroad shall be constructed or operated until aLl damages to such abutting lands shall have been first ascertained and paid to the owner thereof by the person or corporation constructing said railroad. The defendant cannot claim the advantage or benefit of the ordinance without a compliance with its. terms, and therefore it acquired no right under the ordinance and it cannot justify any action taken under the ordinance . granting it the right of location and construction with-o,ut showing a compliance with the terms of the ordinance under which it claims. Dubach v. Eailroad, 80 Mo. 483. (5) Before the council could give consent for the use of Phelps avenue or Washington avenue there was one'condition attached, and that was “Before a railroad can be located on any street a majority of the resident owners shall first assent thereto in writing. ’ ’ The foregoing is the condition precedent to the location of a railroad. (6) After the location by the council and before construction could be begun the Legislature affixed another condition, in addition to the preceding one mentioned that the railroad company should comply with the ordinances governing such matters, the council having sole authority therein, that before a railroad can be constructed or operated all damages to abutting lands must be first ascertained and paid to the owners thereof by the person or corporation constructing said railroad. 2 Lewis’s Sutherland on Statutory Construction, secs. 267, 363, 365, 367.

      R. T. Railey and Barbour é McDavid for respondent.
    (1) The laying of a railroad track in a public street on grade, under municipal authority, and operating the road in the usual mode, is not a new public use for which compensation may be demanded by an abutting owner. Such use is merely the exercise of a right which had resided in the public since the dedication of the street to public use. G-aus & Sons v. Eailroad, 113 Mo. 308; Nagel v. Eailroad, 167 Mo. 98; Eandle v. Eailroad, 65' Mo. 325; Morie v. Transit Co., 116 Mo. App. 12; DeGeofray v. Eailroad, 179 Mo. 698; Donner v. Eailroad, 133 Mo. App. 527; Osborne v. Eailroad, 147 IT. S. 248; Arbenz v. Eailroad, 5 L. E. A. 377; Eailroad v. Bingham, 4 L. E. A. 626; Corby v. Eailroad, 150 Mo. 468 ; Foundry v. Eailroad, 130 Mo. App. 104; Cooper Co. v. Eailroad, 230 Mo. 83; Yersteeg v. Eailroad, 250 Mo. 76. (2) The appellant’s property has pot been invaded; its proprietary rights therein have not been disturbed. It has not suffered any special or peculiar damage other than that sustained by the general public, if any, and hence is not entitled to the relief sought in this action. Ruckert v. Railroad, 163 Mo. 277; Rude v. Railroad, 93 Mo. 408; Nagel v. Railroad, 167 Mo. 98; Donner v. Railroad, 133 Mo. App. 527; Fairchild v. St. Louis, 97 Mo. 85 ; Canman v. St. Louis, 97 Mo. 92; Van DeVere v. Kansas City, 107 Mo. 83; Knapp, Stout & Co. v. St. Louis, 153 Mo. 560; Stephenson v. Railroad, 68 Mo. App, 648; Thompson &• Son v. Macon, 106 Mo. App. 92; Gates v. Railroad, 111 Mo. 34; Bailey v. Culver, 84 Mo. 531; Baker v. McDaniel, 178 Mo. 447; Foundry v. Railroad, 130 Mo. App. 104; Gaus & Sons v. Railroad, 113 Mo. 308; Elliott on Railroads. (2 Ed.), sec. 991. (3) The appellant had full knowledge of the respondent’s intention to build this railroad; it gave a note to induce it to build it; it knew that it was being constructed and that trains were being operated on it; it knew that large sums of money had been expended and were being expended in the improvement of Phelps, avenue. And with full knowledge of all these facts' appellant remained silent and it cannot now maintain this action. Even if appellant was entitled to have damages assessed and paid before the railroad was constructed and operated, which we deny, yet it has waived that right and cannot now make that an issue in this case. It had a full, complete and adequate remedy at law for all damages, if any, sustained by it. Elliott on Railroads (2 Ed.), sec. 1096; Smith v. Sedalia, 244 Mo. 123; Planet Co. v. Railroad, 115 Mo. 61.3; Sherlock v. Railroad, 142 Mo. 186; Provolt v. Railroad, 57 Mo. 256; New York v. Pine, 185 U. S. 93; Roberts v. Railroad, 158 U. S. 1; Williams v. Railroad, 153 Mo. 519; Kanaga v. Railroad, 76 Mo. 213; Snyder v. Railroad, 112 Mo. 536; Webster v. Railroad, 116 Mo. 114; Reinhart v. Railroad, 5 L. R. A. 185. (4) The defendant was not required to ascertain and pay appellant’s alleged damages prior to the construction and operation of its railroad on Phelps avenue. Such damage, if any, is purely speculative and could not be determined before the road was constructed and operated. In this case the evidence fails to show any damage and on the trial defendant offered to prove that appellant’s property had been increased in value as a result of the construction of this railroad, but was not permitted to do so on account of appellant’s objection to the testimony. Art. 2, sec. 21, Constitution; Cans & Sons v. Railroad, 113 Mo. 308; Nagel v. Railroad, 167 Mo. 89; Clements v. Insurance Co., 184 Mo. 46; Medley v. Berry, 143 Mo. App. 641; Smith v. Sedalia, 244 Mo. 124; Gates v. Railroad, 111 Mo. 33; Thompson & Son v. Macon, 106 Mo. App. 84; Provolt v. Railroad, 57 Mo. 262; Vanderburg v. Minneapolis, 6 L. R. A. (N. S.) 745; Arbens v. Railroad, 5 L. R. A. 377. (5) To grant the relief asked by appellant would entail upon the respondent a tremendous loss and would subject the general public to serious and lasting inconvenience and loss, while the benefit, if any, to be derived by the appellant, would be but trivial and insignificant, even if it were entitled to it. Under these circumstances courts of equity will not grant injunctive relief. Elliott on Railroads (2 Ed.), secs. 628', 629, 1096; Bailey v. Culver, 84 Mo. 531; Johnson v. Railroad, 227 Mo. 450; Boecker v. Railroad, 10 Mo. App. 453; Weigel v. Walsh, 45 Mo. 560; Smith v. Sedalia, 244 Mo. 123 ; Schaub v. Construction Co., 108 Mo. App. 122; Safe Deposit Co. v. Ken-nett, 101 Mo. App. 395; Tanner v. Railroad, 180 Mo. 18; Provolt v. Railroad, 57 Mo. 256; Planet Co. v. Railroad, 115 Mo. 613; Cooper Co. v. Railroad, 230 Mo. 90; Versteeg v. Railroad, 250 Mo. 76; McCarthy v. Mining Co., 164 Fed. 939; New York v. Pine, 185 U. S. 93; Skrainka v. Oertel, 14 Mo. App. 481.
   WALKER, P. J.

— Plaintiff, a corporation, engaged in manufacturing in Springfield, Missouri, petitioned for a mandatory injunction in the circuit court of Greene county to compel defendant, a railway corporation, to remove its tracks, switches, and crossovers from Phelps avenue in said city, opposite plaintiff’s property, and that it be restrained from connecting its. track thereon and perpetually enjoined from thereafter constructing and maintaining said superstructures on said avenue and from running its trains, engines and cars thereon. The grounds are that such use and occupation of said avenue by defendant prevent plaintiff from enjoying free ingress to and egress from its building located on the south side of said avenue at its intersection with Washington street.

A temporary injunction was denied in the circuit court of Greene county, whereupon plaintiff took a change of venue to the circuit court of Barton county; a trial upon the merits was there had, resulting in a finding for the defendant and an appeal therefrom by plaintiff to this court.

Phelps avenue is. fifty feet wide. Long prior to the erection of plaintiff’s building thereon the St. Louis & San Francisco Railroad Company, for brevity called the “Frisco,” had constructed and used, and still maintains and uses, a railway track on said avenue, located eighteen or twenty feet from plaintiff’s building. In addition, the said railroad company many years ago constructed and now maintains and uses another track which crosses Phelps avenue at its. intersection with Washington street diagonally across said streets from plaintiff’s building. This is the Frisco’s main line on which it runs its passenger trains between Springfield and St. Louis. Also for many years plaintiff has maintained and now uses a spur or sidetrack from the Frisco track running along said avenue into plaintiff’s building to facilitate tbe handling of.its shipments.

Of the proximity and use of none of these tracks does the plaintiff complain, but of defendant’s track located on the north side, of said avenue about thirty-five feet from plaintiff’s building. This track of defendant was constructed prior to the erection of plaintiff’s building -under the authority of ordinances adopted by the city of Springfield and has since been maintained and used by defendant for the transfer of freight cars, except a break in said track of about thirty feet, which has heretofore not been completed, immediately north of plaintiff’s building. This track is- used by defendant for the transfer of freight cars, when the Frisco is not using its- adjacent tracks along said avenue. The space of eighteen or twenty feet between plaintiff’s building and the Frisco tracks is much below the level of the grade established by the city, except where a passage-way over same has been made by plaintiff opposite the entrance to its building — the testimony not showing why this side of the avenue has not been improved.

All of the tracks- in question are standard gauge and there is, therefore, a.space of four and a half feet between the rails of each particular track. Between the inside rails of the defendant’s and the Frisco tracks there is a space of eight feet, and the north rail of defendant’s track is about fifteen feet from the north line of said avenue. The space, therefore, unoccupied by tracks on the avenue opposite plaintiff’s building is, on the north side, fifteen feet wide, and on the south side eighteen or twenty feet wide.

Since defendant constructed its track on said avenue it has at an expense of several thousand dollars built a retaining wall along the north side'of same and has filled and macadamized it, bringing its level up to the grade established thereon by the city. The present physical use of said avenue has existed for more than three years, before the commencement of this suit. There is a conflict of testimony as to the extent to which the avenne is used by the general public; plaintiff’s officers .and employees testifying that the tracks thereon and their frequent use prevent travel, while many disinterested witnesses testify not only as. to the frequency of the use of said avenue as a highway, but as to its increased use since improved and brought up to the grade.

Plaintiff’s building was erected about two and one half years ago. The tracks were all on the avenue and used for like purposes as at present when the building was erected. The conditions have in no manner changed since the building was erected, except that defendant now proposes to connect the ends of its. track on the north side of said avenue. To prevent this and to require defendant to remove its tracks from said avenue plaintiff asks the interposition of a court of equity.

In a long line of decisions from Lackland v. Railroad, 31 Mo. 180, to Copper & Iron Mfg. Co. v. Manufacturers’ Ry. Co., 230 Mo. 59, 83, this court has held it not unlawful for a city to authorize the construction and operation of a steam railroad on a street and that such use is not a new servitude. The material question, therefore, for determination here, is whether such occupation of said avenue as has been authorized by ordinances, will constitute a monopoly in the use of same by defendant to such an extent as. to impair plaintiff’s rights to' ingress to and egress from its building for all reasonable purposes..

Passing without comment the criticism as to the sufficiency of the abstract in view of the requirements of section 2(M8¡, Revised Statutes 1909, we have carefully reviewed the record to ascertain if it contains substantial testimony to support plaintiff’s claim for relief.

Phelps avenue is not a retail or residence street. Factories, foundries and other plants, including plaintiff’s, are located along same, requiring its use to a large extent, in the transfer of materials to and manufactured products from these various centers of industrial activity. The avenue, therefore, may not improperly be designated as a manufacturing street. While-the practical setting apart of said avenue for the purposes designated does not limit its lawful use as a highway, it may and in justice to the public (which is entitled to be considered as well as the petitioner) it should, influence the action of a court of equity in responding to a prayer for relief made by one who, with a full knowledge of the prior and present use and occupancy of said avenue, deliberately locates¡ thereon and rests content under existing conditions for years', before making complaint.

Preliminary to a consideration of the doctrine of' laches, or, to state it conversely, defendant’s long continued user of said avenue, under the conditions existing at the time it erected its building thereon, it is pertinent to compare the width of the unoccupied portions', of this avenue opposite said building with that of other-streets in which the courts have had under consideration similar questions to the one here involved. In Versteeg v. Railroad, 250 Mo. 61, 78, a case in which a similar action was brought seeking- like relief as herein, the unoccupied portion of the street between the railway tracks and the sidewalk was seven feet and six-inches, and relief was not granted on account of a lack of space; and in Seibel-Suessdorf C. & Iron Mfg. Co. v. Railroad, 230 Mo. 59, 78, it was held that a railroad company would not be enjoined from laying its tracks-, and operating a railroad on a public street where the-space between the sidewalk and the railroad company’s tracks or trains when in operation, was ten feet and^ six inches.

The connection or completion of defendant’s track •on said avenue opposite plaintiff’s building will not lessen the space between the outer or north rail of said track and the street line, which, as stated, is about fifteen feet.

With the fact that the portion of said avenue oc■cupied by the Frisco tracks has not been brought up to the grade, and that a like condition exists in regard to the portion of said avenue between the Frisco tracks and plaintiff’s building, we are not concerned in the determination of the question primarily involved in this case. The grade has been established, defendant has complied with the ordinances in regard thereto, and it is with its conduct alone that we are concerned, and not as to whether the city, or the Frisco, or the plaintiff, has been remiss in completing the improvement of the south side of said avenue to such an extent as to add to plaintiff’s facilities for the transaction of its business..

The precedents cited afford authority for the refusal of the relief asked on the ground that the unoccupied and improved portion of said avenue on the north side of the railroad tracks is sufficient for the reasonable use of the plaintiff, provided defendant’s occupancy of its tracks is not such as to impair plaintiff’s rights. [Versteeg v. Railroad, 250 Mo. l. c. 78.]

There is a conflict of testimony as to whether said avenue is now used by vehicles, and for general purposes as a highway, as frequently as before the construction of defendant’s tracks thereon. If the evidence was clear in regard to such lessened use, to determine its materiality in this case, it must first be shown that such lessened use by the public was due to the location of the tracks thereon and to their occupancy by the railroads; second, that such occupancy so far as concerns the plaintiff, was by the defendant; and, third, that the cessation of travel on said avenue has had an injurious, effect upon plaintiff’s business. That the tracks on said avenue opposite plaintiff’s building were frequently used in the transfer of freight cars thereon, there is much testimony on the part of the officers and employees of the plaintiff, but it is indefinite as to whether the particular tracks used were those of the defendant or the Frisco; as to whether there is less travel on said avenue now than heretofore, the material conflict in the testimony is such as to afford no definite conclusion in reference thereto. As to the effect of said lessened travel generally, if it be admitted to exist, there is no evidence other than indefinite declarations in regard thereto by witnesses for plaintiff, and a like character of testimony is all that has been adduced in regard to any injury to plaintiff’s business consequent upon the location and use of defendant’s tracks upon said avenue.

No disinterested party, present patron, or prospective purchaser of plaintiff, has testified to any facts in regard to the location of said tracks and the use of same by defendant as materially affecting plaintiff’s business. This is a matter of which the plaintiff of necessity had a complete and accurate knowledge, and it behooved it to submit same to the court in support of its application for relief. Failing to do so, the conclusion reasonably follows that no such fact existed.

There is, therefore, in our opinion, not sufficient evidence on which to base a prayer for relief on account of the injury done to plaintiff’s business.

Plaintiff has rested content with the location and use by defendant of its track on Phelps Avenue, except the disconnected portion of about thirty feet, for more than three years before the institution of this action.

It was required to take notice of the adoption of the ordinance authorizing such use and occupation[Boonville ex rel. v. Stephens, 238 Mo. 339, 357; Palmyra v. Morton, 25 Mo. 593, 597; 28 Cyc. 392.] That plaintiff had actual knowledge of the improvement of said avenue by defendant, and its subsequent and continuous use and occupancy of same, there is no question.

Armed with a knowledge, therefore, of the passage of the ordinances by the city, authorizing the use and occupancy of said avenue by the defendant, and of its subsequent improvement of the north side of same at great expense for that purpose, and of its continuous use and occupancy of same thereafter, plaintiff proceeded to erect its building for a distance of two hundred and thirty feet along the unimproved south side of said avenue and to wait three years before making any complaint in regard thereto, until defendant took steps to connect its track for a space of thirty feet along the north side of said avenue. Under this state of facts the equities of plaintiff’s plea are not apparent. Authorities are not wanting in this jurisdiction to the effect that where one stands by and permits the construction of a railroad upon a street, and takes no step to prevent it, he will not be heard thereafter to complain, especially in the absence of evidence of substantial injury. [Versteeg v. Railroad, 250 Mo. l. c. 76.]

We are, therefore, of the opinion, especially in the absence of other compelling testimony, that plaintiff’s laches in this matter are sufficient to authorize a denial of its prayer for relief.

The decree, therefore, -of the trial court should be affirmed, and it is so ordered.

Brown and Baris, JJconcur.