author: WILLIAMS, J.

text:
    THE STATE v. FRED NAVE, Appellant.
    Division Two,
    February 16, 1918.
    1. LARCENY: Of Cow From Range: Sufficient Evidence. Cases involving tlie sufficiency of the evidence to establish the larceny of stock from the range often present questions difficult of solution; but the evidence in this case is set out in detail, and the conclusion reached that sufficient additional evidence was presented to distinguish the case from State v. Lee, 182 S. W. 972, and that the evidence is sufficient to make the question of defendant’s guilt one for the jury’s determination.
    2. -: Instruction: Presumption Arising From Recent Possession. An instruction which informs the jury of the presumption arising from the recent exclusive and unexplained possession of the stolen property, given to aid the jury in identifying the thief after they have in fact found that a theft has been committed, in a case in which defendant does not admit that he is the person who took the stolen cow from the owner’s possession, is not misleading and is not error. [Distinguishing State v. Warden, 94 Mo. 1. c. 651, and State v. Lee, 182 S. W. 972.]
    Appeal from Taney Circuit Court, — Hon. Fred Stewart, Judge.
    Affirmed.

      D. F. McConkey and Moore, Barrett & Moore for appellant.
    (1) The court erred in overruling the demurrer filed at close of State’s evidence, and at the close of all the evidence. All the evidence on the part of the State fails to show that this was the cow that belonged to Awbrey, the injured party. No witness identified this cow as being the property of Awbrey. And further if this was the cow, the defendant honestly accounted for his possession by telling the injured party whom he got the cow from, where the party lived, and did everything an honest man could do. State' v. Bass, 251 Mo. 107; State v. Warren, 14 Mo. 83. (2) The court erred in giving instruction number 8, as the testimony doesn’t warrant the giving of an instruction on the recent possession of stolen property, nor is said instruction sufficient within itself. State v. Dashman, 153 Mo. 451; State v. Richmond, 186 Mo. 71; Bishop’s Criminal Law (New’s 2 Ed.), sec. 989.

      Frank W. McAllister, Attorney-General, and Thomas J. Cole for the State.
    (1) The court did not err in refusing to sustain the demurrer to the evidence. Where there is some evidence of defendant’s guilt, a demurrer to the evidence should not be sustained. State v. Pollard, 174 Mo. 614; State v. Warner, 74 Mo. 85; State v. Stuart, 116 Mo. App. 330. (2) There was sufficient evidence in this case to identify the cow sold by defendant as Awbrey’s cow. State v. Estes, 209 Mo. 288; State v. Dickson, 78 Mo. 446; Colquitt v. State, 61 Ala. 48; Turner v. State, 74 S. W. 777. (3) Instruction 8 contained all necessary elements under the facts of this case. ■ State v. Good, 132 Mo. 125; State v. Moore, 101 Mo. 330. (4) The evidence is sufficient to sustain the verdict. State v. Underwood, 263 Mo. 685; State v. Concelia, 250 Mo. 425.
   WILLIAMS, J.

Upon an information charging him with the larceny of one black cow, the property of one C. G. Awbrey, defendant • was tried in the circuit court of Taney County, found guilty, and his punishment assessed at two years ’ imprisonment in the penitentiary. Defendant has duly perfected an appeal.

The crime was alleged to have occurred on the 23rd clay of August, 1915.

Upon the part of the State the evidence tends to establish the following facts: ,

Prosecuting witness Awbrey lived on a farm about one mile northwest of Protem, Taney County, Missouri, and owned a black cow and a heifer, which were running out on the range about two and one-half miles from Awbrey’s home and about four miles north of the Arkansas State line. The black cow weighed about one thousand pounds, wore a bell, and is described by Awbrey as follows:

“She was a black cow; and had white on her belly and white on her flank and her right front foot was white; that is all the white there was about her. ’ ’

About the last of July or the first of August, 1915, the heifer “came up” without the cow and the owner never saw the black cow after that date. Several cattle ran on this range. The extent of the range is not given. The owner made a search, but was unable to find the cow. A road leading from the neighborhood in which Awbrey lived went in a westerly direction about four miles, passing the farm of one Bud Ellison, and there turned in a more northerly direction toward the farm of Lee Jenkins. The Jenkins farm was four or five miles north of the Bud Ellison farm.

One Sunday night in 1915 and about threshing time, Bud Ellison heard a strange cow bell in the road which passed his house. He did not see the cow which wore the bell, nor did he see any one driving cattle, because it was too dark. He testified, however, that Awbrey’s cattle were not in the habit of running around his place.

In November of 1915, C. B. Wood and his son were going along the road which runs from the Bud Ellison farm to the Lee Jenkins farm, and at a point about one mile south of the Lee Jenkins farm the boy discovered a cow bell at the edge of the road. The bell had a small piece of leather strap attached, which 'had the appearance of having been gnawed by rats. The bell was filled with decayed grass, etc., which had the appearance of having been stuffed into the bell. They took the bell home with them, and a few months later Awbrey having-heard of the incident called at the Wood home and after describing the bell which was formerly on his cow, which tallied with the description of the bell, was given possession of the bell. This bell was introduced in evidence at the trial and was identified by Awbrey as the bell which was worn by his black cow at the time of her disappearance from the range.

One Monday morning in July or August, 1915, the defendant and another man, unknown to the witness, came to the farm of Lee Jenkins driving two cows, one black and one red, and asked Jenkins if he could get a place in which to put his cows. Jenkins told defendant to put them in a lot, but defendant said that he would prefer a pasture. Jenkins then told defendant to put them in a near-by alfalfa field. Jenkins in describing the cow testified that she would weigh between nine hundred or one thousand pounds; that “she was a black cow7; I remember she had a little white on both hind feet and she was black from the top to the brisket. ’ ’ On being further examined as to the white upon the cow he said: “I don’t remember; I remember noticing some v7hite on her feet.” On cross-examination this witness testified as follows:

“Q. Which of her feet were white? A. Each one of her hind feet.
“Q. You did not notice any white except upon her hind feet? A. Not that I noticed of any more.”

After placing the two cows in the alfalfa field, defendant went to a neighboring ranch to get another cow which he claimed belonged to him, and after returning with the other cow defendant and his helper drove the three cows to “Bud Sheralds.” The witness Jenkins had some cattle which he also on that day took over to Sheralds’s. After the cattle were driven to Sheralds’s defendant sold his three cows to a man by the name of Brown Morrison from Illinois. Jenkins knew that defendant was coming with the cattle, because the defendant had told Jenkins on the Saturday before that he was going to drive some cattle up to his place on the next Monday morning and that they would drive their cattle together over to Sheralds’s. Defendant did not tell Jenkins from what place he was going to bring the cattle, but the witness presumed he was going to bring them from home. The witness also testified that the black cow did not have any bell on her when defendant drove her up to his farm on that day.

A few weeks after the cow disappeared a warrant was issued for the arrest of the defendant. The next day after the warrant was issued defendant went to Awbrey ’s house, told Awbrey that he did not think Awbrey had done him right, and that Awbrey “didn’t get the right fellow.” He further told Awbrey that he had bought the coav from a man named Sissom down at the “Chigre School House neighborhood in Arkansas.” Defendant also told Awbrey that the cow he was driving did not have a bell, but that while he was driving the cow on the night in question an old roan cow wearing a bell followed them some distance near the home of Bud Ellison until he separated the roan cow from his cows and started the roan cow in an opposite direction. Defendant told Awbrey that he could prove where he bought the cow by one Abner Pemberton and Richard Mullinax, and that Mullinax helped him drive the coav that night.

Charley Ayers, the constable, testified that after the warrant for defendant’s'arrest was delivered to him he was unable to find the defendant, that he went to the home of defendant’s father and inquired and was told that defendant was at another place. The constable left word for defendant to meet hjm at Protem. The constable heard that afterwards the defendant came to Protem that same day, but did not stay. A few days later the constable heard that defendant was leaving the country and followed him as far as Bradleyville, but upon arriving at Bradleyville learned that defendant had taken the hack and departed.

Upon the part of the defense the evidence tends to establish the following facts:

Defendant testifying in his own behalf stated that he was twenty-two years old, and that in the summer of 1915 was engaged in farming and buying and selling-stock on a small scale. That during that summer he bought a “black” cow and a red one from Albert Sissom, who lived near the Chigre Hill School House in Marion County, Arkansas. That no one was present when he made the purchase, but just after the defendant paid for the cattle one Harry Long rode np, ■ and Sissom. said: “Fred [meaning the defendant], do not say anything about buying them cattle for a few days; I owe some fellows and I want to leave and work, and I will be back and pay them.” Defendant told him that was all right with him. On cross-examination defendant testified he never asked Sissom where he got the cows. The defendant and Long started down the road and met Albert Pemberton, and defendant told him that he had bought some cows and pointed them out to Pemberton. While the three were looking at the cows Sissom came up from the brush and said, “Nave, I thought you was not going to say anything about me selling those cattle?” and defendant replied, “I haven’t,” and Sissom said, “That is all right.” Defendant tried to engage Long to help him drive the cattle out. He testified that Chigre Hill School House was about three and one-half or four miles from the home of Awbrey. In specifically describing the cow the defendant'said: “As I said awhile ago, I think she weighed 920 pounds, and she had some white on her; she was a tolerable heavy cow; she was' heavy made from the shoulders down. I would judge her to be about seven or eight years old.” He further testified that the cow did not have any bell on. After buying the cattle defendant said he permitted them to remain where they were for about a week and he found a man who was willing to purchase them if he could get them over to Bud Sheralds’s. He employed Richard Mullinax to help drive the two cows over there. Mullinax told defendant that he could not help him drive the cattle until after he had called upon his girl on the Sunday in question. The defendant thought it would be better on account of the hot weather to drive the cows at night, anyhow, and he also went to see his girl. It was about sundown Sunday before they started out with the cattle. They drove them through by Bud Ellison’s, and they had considerable trouble along the road with other cattle “crowding in,” which they would have to drive back. At one place he says there were fifteen or twenty head of cattle following them, among which there was an old roan cow wearing a bell. Pie then tells about reaching the home of Jenkins about daybreak. There he left the cows in an alfalfa pasture. Later in the day he drove the cows over to Sheralds’s, and there on that day sold them to Mr. Morrison, who gave him a check on the Bank of Ramsey, Illinois. Two or three weeks later defendant heard that Awbrey had lost a cow, and some one told defendant that a warrant was out for his arrest upon this charge. The next morning defendant went to Awbrey’s home and told him that he had bought this cow from Sissom and that he would rather that he would take the matter up with Sissom. When the defendant returned to his father’s house that day he was told that a constable had been there with a warrant. Defendant then went to Protem inquiring for the constable and was told that he was gone, and the defendant left word for the constable that he would be at home the next morning and that he lived about one mile and a quarter from Protem, and remained at home the next three days. About a week after that defendant met one Rpy Davis who told defendant that- he heard that they were going to have defendant arrested for “carrying a gun,” and advised defendant “to get up and get out.” Defendant said he was needing work, which fact together with the advice from Davis, caused him to go to Oklahoma. Defendant also admitted that before he left for Oklahoma he knew that the Constable had a warrant for his arrest, upon the charge of having stolen Awbrey’s cow.

After remaining in Oklahoma a short time he went to Columbus, Kansas, remaining there two months, and then went to Iola, Kansas, where after remaining a month, he went to Branson, Missouri, and there learned that the grand jury had indicted him for stealing a cow; he thereupon went to Forsythe, Missouri, and gave bond. Afterwards he returned to Collinsville, Oklahoma, and remained there most of the time thereafter, except for a period of about two months. He stated that Richard Mullinax how lived in Rush, Arkansas, and he was unable to procure his attendance at the trial. He further testified that it was about fifteen miles from Chigre Hill School House in Arkansas to the farm of Lee Jenkins in Taney County, Missouri.

Defendant also admitted upon cross-examination that in 1915 in the circuit court of Taney County he was convicted of selling liquor in violation of the law, and that in 1911 in said circuit court he was convicted of burglary and larceny.

Harry Long testified that he met defendant near the Chigre Hill School House at the time in question, and defendant told him that he had bought some cattle from Sissom and wanted the witness to help drive them out. Witness said that there was a dark looking cow there, but that he did not pay much attention. Two other witnesses saw defendant going towards the Chigre Hill School House about the time in question.

Albert Pemberton, by deposition, testified that on July 16, 1915, he saw defendant near the Chigre Hill School House and that defendant pointed out to him and witness Long two cows which he claimed lie had bought, one of the cows was red and the other was “a large black and white spotted one; ’ ’ that while they were looking at the cows Sissom came out and told defendant that he did not mean for him to tell about him selling those cattle for a few days, and said, “Fred, you said you would not tell about me selling you these cows for a few days?” and defendant replied, “I haven’t said anything to any one about it yet. ’ ’ After this conversation the witness, together with defendant and Harry Long, went to Protem, the defendant leaving the cows on the range near the place of purchase.

In rebuttal, Emerson Rozell, testifying for the State, said that in 1915 he lived near the Chigre Hill School House in Arkansas, within a quarter of a mile of Albert Sissom; that he was well acquainted with Sissom, but did not know that Sissom owned any cattle; that he (witness) supplied Sissom with milk that year. On cross-examination the witness said he never heard Sissom claim that he owned any cattle, but that “he might have had some hid out in the brush, on the range.”

I. Appellant insists that the evidence is insufficient to support the verdict, and that the court erred in overruling his demurrer to the evidence, offered at the close of the case.

Cases involving the question of the larceny of stock from the range ofttimes present questions difficult of solution. One of the recent cases which presented a troublesome question of this kind was the case of State v. Lee, 182 S. W. 972, in which ^ wag £he Court in Banc that the evidence was not sufficient.

After a very careful consideration of the evidence in this case we have reached the conclusion that it contains sufficient additional evidence to distinguish it from the Lee case, and that the evidence is sufficient to make the question of guilt one for the jury’s determination. The fact that the cow was driven at night a distance of ten or twelve miles, and the next day sold and shipped away, and the further fact that defendant left the State at a time when he knew that he stood charged with the crime and that a warrant was out for his arrest are facts sufficient within themselves to distinguish this case from the Lee case, and when those facts are considered in the light of the whole evidence we think the evidence sufficient to make a case for the jury.

The main point urged by appellant in behalf of his contention that the demurrer should have been sustained is that the evidence wholly fails to show that the cow driven away at night by defendant was in fact the cow alleged to have been stolen. ' We think the evidénee in this regard was sufficient to warrant the jury in finding that the cow taken.by defendant was the one charged to have been stolen. The owner of the cow 'described his cow as follows:

“She was a black cow, weighing one thousand pounds, wore a bell, and had white on her belly and white on her flank and her right front foot was white.”

Defendant described the cow which he drove away on the night in question as a black cow and further said.:

“As I said awhile ago, I think she weighed 920 pounds, and she had some white on her.”

It is true that one of the State’s witnesses, after testifying that the cow which defendant had in his possession was a black cow weighing nine hundred or a thousand pounds, further stated that “she had a little white on both hind feet. Yet on cross-examination concerning the white on the cow he said: “I don’t remember; I remember noticing some white on her feet.”

It will be recalled that the bell which was worn by the cow belonging to the prosecuting witness prior to her disappearance from the range was later found along the road over which defendant drove the cow on the night in question and at a point six or eight miles north of the range upon which the stolen cow was located prior to her disappearance. We think the evidence considered as a whole, was sufficient to make the question of the identity of cow one for the jury.

II. It is contended that the court erred in giving instruction numbered 8. This instruction informed the jury of the presumption arising from the recent exclusive and unexplained possession of stolen property.

The instruction given follows substantially (so far as the present facts justify) the form approved in the case of State v. Good, 132 Mo. 114, l. c. 125.

The purpose of an instruction upon this question of law is to aid the jury in identifying the thief when it has first been found by the jury that a theft has in fact occurred. [State v. Warden, 94 Mo. l. c. 651; State v. Lee, supra.] In the cases cited the giving of an instruction on this subject was held to be erroneous because in each of those cases it stood admitted that the defendant was the taker (the only issue there presented being whether the taking was or was not felonious), hence the instruction in those cases was unnecessary and apt to be misleading.

In the case at bar, however, defendant does not admit nor does it stand conceded that defendant is the person who took the cow from the possession of the prosecuting witness. The person who took the cow from the range, where the prosecuting witness had placed her, was the felonious taker. There is no direct evidence as to who that person was. The identity of the felonious taker was therefore an issue in the case, and as a permissible aid to the jury in solving this question the instruction was proper.

Other instructions appear to he in proper form and we find no error in the case. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    STIX, BAER & FULLER DRY GOODS COMPANY v. OTTAWA REALTY COMPANY et al.; CHICAGO BONDING & SURETY COMPANY, Appellant.
    Division Two,
    February 16, 1918.
    1. ACTION ON BOND: Construed in Light of Contract. If the bond sued on refers to the contract and the contract refers to the bond, the bond is to be construed in the light of the terms of the contract; and being so construed, the liability of the surety on the bond cannot exceed that of the principal therein.
    2. -: -: Measure of Vendor’s Damages: No Delivery or Tender. If the vendee, having agreed to pay one-half of the purchase price of goods in advance, makes default, the measure of damages of the vendor, who by the contract has the right to refuse to make delivery and refuses to make delivery or tender the goods, is not the full amount of the advance payment agreed to be made, but (upon proper pleadings) the profit, if any, which he lost by the vendee’s breach.
    3. -:--:--: Nominal: Unconditional Fromise. Where the principal by his contract for the purchase of carpets agreed, as a condition precedent to delivery, to pay one-half the purchase price in advance of the designated date of delivery, and the surety by its guaranty bond, in which said provision of the contract was incorporated, obligated itself to pay the said designated sum in ease the principal did not pay it by said date, and the vendor exercised its option, reserved in the contract, not to deliver unless . said advance payment was made, the said vendor, in its action on the bond, is not entitled to recover said designated sum; and if it bases its petition on the theory that the guaranty bond is an unconditional and independent promise to pay a sum certain upon a day certain — thus disassociating itself wholly from the contract oí sale, to which the bond itself refers as the sole actual consideration for its existence, and neither averring nor proving a delivery or an attempt or offer to deliver or any expense or loss sustained by reason of failure to pay — it can recover only nominal damages. There being neither delivery, nor offer to deliver, nor averment or proof of loss, the vendor cannot both retain the goods and recover in money the amount of their value; and the liability of the surety, in such case, is the same as that of the vendee.
    4. -; -: -: -: Profits: Pleading. It may be that the vendor, upon proper pleadings and proof, in its action for a breach of the bond guaranteeing an advance payment for carpets sold, may be entitled to recover the profits which he lost by the vendee’s breach of the contract, which would seem to be the difference between the price agreed to be paid and the cost of buying them upon the market, making them up and laying them down in the rooms for which they were intended; but he is not entitled to recover profits, nor anything more than nominal damages, where he neither avers nor proves that he has done anything whatever towards fulfilling the contract on his part except to bring his suit for the amount of advance payment.
    Appeal from St. Louis City Circuit Court. — Hon. Wilson A. Taylor, Judge.
    Reversed and remanded.

      Holland, Rutledge & Lashly for appellant.
    (1) The court erred in giving the peremptory instruction to find for respondent and to assess its damages in the sum of $12,000 and interest, (a) Because the liability of a surety can never exceed that of his principal, (b) "Where a bond refers to another contract, such contract becomes a part of the bond and the latter must be construed in the light of the provisions of such contract. Heller v. Daman, 183 Mo. App. 334; Machine Co. v. Winchell, 107 Ind. 260; Jordan v. Cavanaugh, 63 Iowa, 152; Forest v. Leonard, 112 Ala. 298; Stevens v. Partridge, 109 111. App. 486; Trust Co. v. Surety Co., 175 Fed. 200. (c) Where a contract of sale is executory and the vendee fails to perform, the vendor cannot recover the purchase price, but can recover by way of damages only the difference between the contract price and the market price. Lumber Co. v. Warner, 93 Mo. 374; Brown v. Asphalt Co'., 210 Mo. 620; Kingsland & Ferguson Co. v. Iron Co., 29 Mo. App. 526; Frederick v. Willoughby, 136 Mo. App. 244; 35 Cyc. 592; Benjamin on Sales (5 Ed.), p. 805; 2 Sedgwick on Damages (9 Ed.), par. 573; Thornberry v. Thompson, 69 Mo. 481; Barrie v. Seidel, 30 Mo. App. 559. (d) If the bond in question is to be treated as independent of the contract of sale, then it is void for want of consideration. Smith v. Busby, 15 Mo. 391. (e) A stipulation in a contract for liquidated damages is unenforceable where the actual damages are readily ascertainable and the stipulated amount savors of extortion and injustice. Bayse v. Ambrose, 29 Mo. 39; Railway v. Stone Co., 90 Mo. App. 171; Cochran v. Railway, 113 Mo. 359; Menges v. Piano Co., 96 Mo. App. 283; (f) Because the petition does not state a cause of action. (2) The court erred in refusing to give the peremptory instruction asked by appellant at the close of all the evidence. Thornberry v. Thompson, 69 Mo. 481; also cases supra. (3) The court erred m refusing to give instruction asked by appellant to the effect that if they found for respondent only nominal damages could be allowed. Authorities supra.

      Eliot, Chaplin, Blayney & Bedal for respondent.
    (1) Even assuming that respondent was suing on the contract and not on the bond, the payment of $12,000 was a condition precedent to any delivery of carpets, etc. Under such a contract it was not even incumbent upon respondent to make a tender of the carpéts, etc., much less show any delivery. The trial court correctly excluded the offer of proof made by appellant. Benjamin on Sales (7 Ed. Bennett’s), sec. 762, p.789; Willis-ton on Sales, seps. 560, 575; 5 Elliott on Contracts, sec. 5093, p. 1229; Burdick on Sales (2 Ed.), sec. 365, p. 221; 2 Meeliem on Sales, see. 1415, p. 1225; Dunlop v. Grote, 2 Car. & Kirwan, 153; Gourd v. Healy, 163 N. Y. Supp. 637; Hop Co. v. Livesly, 51 Ore. 527; Lumber & Mfg. Co. v. Reyburn, 195 S. W. 576; Loveland v. Drug Co., 116 N.. E. (Mass.) 570; White v. Solomon, 164 Mass. 516; Loud v. Land & Water Co., 153 IT. S. 564; Kirtz v. Peek, 113 N. Y. 222. (2) Appellant incorrectly states the rule in this State on the right of a seller under an executory contract to sue for the purchase price of goods where the payment of the price and delivery of the goods are concurrent conditions. But such rule has no application to this case where the payment of part of the purchase price was a condition precedent to the delivery of the goods. The correct rule where the conditions are concurrent is given in the following cases: Lumber Co. v. Warner, 93 Mo. 374; Oehler v. Fruit Co., 162 Mo. App. 446; Potato Growers’ Assn. v. Produce Co., 185 Mo. App. 1; Range Co. v. Mercantile Co., 120 Mo. App. 438; Klein v. Johnson, 191 Mo. App. 453; Dehner v. Miller, 166 Mo. App. 504; Koenig v. Boat Mfg. Co., 155 Mo. App. 685; Walker v. N'ixon, 65 Mo. App. 326; Campbell v. Woods, 122 Mo. App. 719; Vinegar & Spice Co. v. Wehrs, 59 Mo. App. 493. In Missouri, the rule is not limited to articles specially manufactured for the buyer, but is applied as well to articles of ordinary commerce. If the point were applicable to this case, the stricter rule applied in other states would apply, because the contract of sale was for more than carpets, linoleum and paper. The carpets were to be made up by the seller specifically for use in the Southern Hotel and were to be laid by the seller in the rooms in that hotel. (3) The case of Thornberry v. Thompson is very different from the case at bar, and in its final result fully sustains the position of respondent. Thorn-berry v. Thompson, 69 Mo. 481, 18 Mo. App. 421. (4) The bond sued on was not a contract of indemnity but was a eonvenant to do an affirmative act — pay $8000 on April 1st and $4000 on April 15th. Respondent’s right of action immediately accrued on failure of the principal to make the payments, and no damages need be proved by respondent. Investment Co. v. Lewis, 196 S. W. 1137; • Investment Co. v. Lewis, 180 Mo. App. 22; Loewenthal v. McElroy, 181 Mo. App. 399; Burnside v. Wand, 170 Mo. .531; Bank v. Leyser, 116 Mo. 51; Rowsey v. Lynch, 61 Mo.-560; Ham v. Hill, 29 Mo. 275; Hicks v. Hoos, 44 Mo. App. 571; Ins. Co. v. Brown, 80 Mo. App. 459; 2 Joyce on Damages, sec. 1358; 13 Cyc. 166. (5) The appellant is a surety for hire and therefore not a favorite of the law. Its contract is not to be construed strictissimi juris. Lackland v. Renshaw, 256 Mo. 133; State to use v. Cochrane, 264 Mo. 581; R. E. & Finan. Co. v. Trust Co., 184 S. W. 1030. A strained construction should not be adopted either to hold or release a surety. Beers v. Wolf, 116 Mo. 179, 184; G-ouns v. F. & G-. Co., 192 S. W. 112. Only so much of the contract is incorporated in the bond as is referred to, viz, that part of the contract stipulating for the two payments. 5 Cyc. 757; 9 Corpus Juris, 36; Blythe v. Free, 148 Pac. 427.
   FARIS, J.

This is an action brought by plaintiff against defendants upon a bond of guaranty, wherein upon trial nisi plaintiff had judgment "upon a directed verdict for the full penal sum of the bond. On the trial defendant Ottawa Realty Company made default. Defendant Chicago Bonding & Surety Company, after the conventional motions, appealed.

The facts of the case, except such as we shall find it necessary briefly to refer to in our discussion of the case, clearly and sufficiently appear from the petition, from the bond and contract filed as exhibits thereto, and from the answer filed by defendant Chicago Bonding & Surety Company. Defendant Ottawa Realty Company filed as its answer a general denial merely, and thereafter, as stated, made default.

The petition of plaintiff herein, caption, signatures, and merely formal parts omitted, is as follows:

“Now comes the plaintiff in the above entitled cause, and states that it and the defendant Ottawa Realty Company are Missouri corporations, and the defendant Chicago Bonding & Surety Company is an Illinois corporation.
“And for cause of action, plaintiff states that on, to-wit, the 18th day of March, 1914, the defendant Ottawa Realty Company as principal, and the defendant Chicago Bonding &. Surety Company as surety, executed a bond to plaintiff in' the sum of twelve thousand dollars, with interest at the rate of six per cent per annum on the sum of eight thousand dollars after the first day of April, 1914, and on the sum of four thousand dollars after the fifteenth day of April, 1914, conditioned that if the principal should pay the sum of eight thousand dollars on Oor before the first day of April, 1914, and the sum of four thousand dollars on or before the fifteenth day of April, 1914, and if not paid at said times to bear interest at the rate of six per cent per annum, and when said principal and interest were paid then the obligation to be void, otherwise to remain in full force and effect.
“Plaintiff herewith files a copy of the said bond, verified by affidavit, as required by section 1844, Revised Statutes 1909, and makes the same a part of its petition the same as if hereunto attached.
“And for breach' of said bond, plaintiff states that the defendant Ottawa Realty Company failed to pay the sum of eight thousand dollars on or before the first day of April, 1914, and the sum of four thousand dollars on or before the fifteenth day of April, 1914, and the .defendant Chicago Bonding & Surety Company has also failed to pay the said sums, and that the said sum of twelve thousand dollars still remains due and unpaid.
“Wherefore, plaintiff prays judgment against the defendants, Ottawa Realty Company and Chicago Bonding & Surety Company, in the sum of twelve thousand dollars, together with interest at the rate of six per cent per annum on eight thousand dollars from April 1, 1914, and on four thousand dollars from April 15, 1914, together with its costs.”

As stated above, the bond of guaranty was made a part of plaintiff’s petition by reference, and by being attached thereto as an exhibit. This bond in turn referred to the contract, which was, as to certain provisions thereof, guaranteed by the bond. The contract in turn referred to the bond. Upon the trial both the bond and the contract were offered by plaintiff as a part of its case. This bond, omitting signatures, corporate seals, and merely formal parts, reads thus:

"Know all men by these presents, That we the Ottawa Realty Company, a corporation organized under the laws of the State of Missouri, as principal, and the Chicago Bonding So Surety Company, a corporation organized under the laws of the State of Illinois, with principal office at 29 South LaSalle Street, Chicago, Illinois, and St. Louis office .at 350 Pierce Building, St. Louis, Missouri, as surety, are held and firmly bound unto Stix, .Baer So Fuller Dry Goods Company, a corporation organized under the laws of the State of Missouri, as obligee, in the full and just sum of twelve thousand dollars, with interest at the rate of six per cent per annum on the sum of eight thousand dollars after the first day of April, 1914, and on the sum of four thousand dollars after the fifteenth day of April, 1914, as set out below, to the payment of which sum, well and truly to be made in lawful money of the United States, the principal and surety bind themselves, their successors and assigns, jointly and severally, firmly by. these presents.
"Signed, sealed and delivered, this 18th day of March, 1914.
"The condition of the above obligation is such, that,
"Whereas, the Ottawa Realty Company has this day entered into an agreement with the Stix, Baer & Fuller Dry Goods Company for the purchase of carpets and linoleum, a copy of which agreement is hereto attached and referred to; and,
"Whereas, it is provided in said agreement, among other things, as follows:
“The Ottawa Company will pay the Dry Goods Company on the first day of April, 1914, the sum of eight thousand dollars, which, at the option of the Dry Goods Company, shall be a condition precedent to any delivery of carpets, and is to be a part payment of the purchase price of said carpets in advance of their delivery and being laid, and the Ottawa Company further will pay the Dry Goods Company on the fifteenth day of April, 1914, the sum of four thousand dollars, and the Ottawa Company is to furnish to the Dry Goods Company its own collateral bond or guaranty, with a Surety Company satisfactory to the Dry Goods Company bound thereupon, to the prompt payment of the said sum of eight thousand dollars on the first day of April, 1914, and the said sum of four thousand dollars on the fifteenth day of April, 1914, with interest thereupon at the rate of six per cent from the said respective dates until paid.
“And,
“Whereas, This is intended to he the bond or guaranty referred to in the said contract, and is made for that purpose and in consideration of the making ■of said contract.
“Now, Therefore, if the principal shall pay the sum of eight thousand dollars on or before the first day of April, 1914, and the sum of four thousand dollars on or before the fifteenth day of April, 1914, and if not paid at said times to bear interest at the rate of six per cent per annum, and when such principal and interest are paid, then this obligation to be void; otherwise to remain in full force and effect.
“In witness whereof, the principal has caused this bond to be signed by its president, attested by its secretary, with its seal affixed, and the surety has caused this bond to be signed by its attorney-in-fact, with its seal affixed, in the city of St. Louis, the day and year first above written.”

The contract mentioned above, and referred to in the bond sued on, formal parts, and signatures and corporate seals, all of which are conventional, being omitted, reads thus:,

“This agreement, Made and entered into this 18th day of March, 1914, and between the Ottawa Eealty Company, a corporation duly organized under the laws of the State of Missouri (hereinafter called ‘the Ottawa Company’), and the Stix, Baer & Fuller Dry Goods Company, a corporation duly organized under the laws of the State of Missouri (hereinafter called ‘the Dry Goods Company’),
“Witnesseth:
“The Ottawa Company.agrees with the Dry Goods Company that it will purchase and accept from the Dry Goods Company the carpets required for the furnishing of the newly-equipped Southern Hotel, together with the linoleum for the bathrooms thereof, of which property the Ottawa Company is the lessee, the quantity of which carpets is to be approximately twenty, thousand yards of the character and kind known in the carpet trade as ‘Smith’s No. 7000,’ at one dollar and twenty-five cents per yard, ‘Smith’s No. 4000’ at ninety-two cents per yard, and ‘Hartford-Plaza’ at one dollar and twenty-five cents per yard, of standard patterns, at and for the prices stated according to the quantities used, amounting in all to approximately twenty-four thousand dollars: the linoleum is to be approximately four hundred yards, of the character and kind known as ‘Blue and White Tile, Best Quality, Domestic Inlaid Linoleum,’ at one dollar and fifteen cents per yard, and B. grade Brown German Linoleum at seventy-five cents per yard. The,paper to be laid under the carpets is additional in price, at the rate of nine dollars and fifty cents per bale of two hundred yards each, weight two hundred and twenty-five pounds per bale. The total price or cost shall be accurately ascertained by computation at the said rates at or before the time of delivery, and the Dry Goods Company agrees to furnish, make and lay the said paper, carpets and linoleum at the prices stated, in the rooms indicated therefor by the Ottawa Company, on the following terms and conditions:
“The Ottawa Company will pay the Dry Goods Company on the first day of April, 1914, the sum of eight thousand dollars, which, at the option of the Dry Goods Company, shall be a condition precedent to any delivery of carpets, and is to be in part payment of the purchase price of said carpets in advance of their delivery and being laid, and the Ottawa Compny further will pay the Dry Goods Company on the fifteenth day of April, 1914, the sum of four thousand dollars, and the Ottawa Company is to furnish to the Dry Goods Company its own ‘collateral bond or guaranty, with a Surety Company satisfactory to the Dry Goods Company hound thereupon, to the prompt-payment of the said sum of eight thousand dollars on the first day of April, 1914, and the said sum of -four thousand dollars on the fifteenth day of April, 1914, with interest thereupon at the rate of six per cent from the said respective dates nntil paid. -
“When the Dry Goods Company begins to deliver and lay the carpets, the Ottawa Company will make and deliver to the Dry Goods Company its promissory notes for the balance of the purchase price, that is to say, the total cost or price, computed as aforesaid, less the sum of twelve thousand dollars to he paid as provided in the last preceding paragraph, which notes for the balance of purchase price shall be in four equal amounts, payable in thirty, sixty, ninety and one. hundred and "twenty days, with interest at the rate of six per cent per annum from date, respectively, and shall be secured by a valid chattel mortgage to he made by the Ottawa Company upon the said carpets and linoleum so sold and delivered, as a first and only lien thereon, in favor of said Dry Goods Company for the payment of the said notes; such chattel mortgage to he in the usual form of chattel mortgages used upon the sale of furniture or like property in the said city of St. Louis.
“If at the time of delivery, or at any time before maturity of the notes, the Ottawa Company wishes to pay cash in full, it may do so without paying interest thereafter, and will he entitled to a release of the chattel mortgage after such payment is made in full, if the same has been delivered.
“Failure of the Ottawa Company to receive and accept the carpets when offered for delivery by the Dry Goods Company, or to execute and deliver the notes and chattel mortgage as security for the balance of purchase price, shall in nowise impair or lessen the duty and obligation to pay the said sum of twelve thousand dollars secured by collateral undertaking as aforesaid, but in that event the said sum of twelve thousand dollars shall be taken as liquidated damages for the failure of the Ottawa Company to comply with the terms of this agreement.
“In witness whereof, The said corporations have caused these presents to be executed in duplicate in their corporate names, by their presidents, respectively, with their corporate seals hereto affixed, attested by their respective secretaries, on the day and year first aforesaid.”

The answer of defendant bonding company is also pertinent to the points raised, and which we will find it necessary to discuss. This answer, formal parts omitted, read thus:

“Now comes the Chicago Bonding & Surety Company, one of the defendants in the above styled cause; and for answer to- the petition of the plaintiff herein denies each and every allegation therein contained.
“Further answering this defendant states that on the 18th day of March, 19Í4, the Ottawa Realty Company entered into a contract to purchase from the plaintiff certain goods, wares and merchandise, to-wit, certain carpets and papers, for a certain price. That by the terms’of the said contract the Ottawa Realty Company agreed to pay for said goods, wares’ and merchandise in advance of the delivery thereof the sum of $8000 on April 1, 1914, and an additional sum of $4000 on April 15, 1914, and that it was further provided in said contract that a guarantee should he made as to the said payments of said cash on the said dates, and that by said contracts it was further provided that in addition to the guarantee, the plaintiff herein should have the right to withdraw from said contract and retain the said goods, wares and merchandise sold in said contract and not make delivery thereof in event' the said cash payments were not made.' Defendant states that pursuant to the terms of the said contract it entered into a certain agreement with the plaintiff on the 18th day of 1914, hy which said agreement it guaranteed to plaintiff that the said Ottawa Realty Company would make the cash payments as provided in the aforesaid contract between the said Ottawa Realty Company and the plaintiff. That the contract between the Ottawa Realty Company and the plaintiff was referred to and made a part of the contract and agreement between this defendant and the plaintiff. Defendant states that on the 1st day of April, 1914, the Ottawa Realty Company did not make the payment provided for in its contract with the 'plaintiff. Defendant states that thereupon, pursuant to the terms of the contract between the plaintiff and this defendant and pursuant to the terms of the contract between the plaintiff and the Ottawa Realty Company., the plaintiff had the option of performing said contract and delivering the said goods, wares and merchandise and holding the said Ottawa Realty Company and this defendant upon the said contract, or of withdrawing from said contract and refusing to go on with the same and refusing to deliver the said goods, wares and merchandise as provided for in said contract. This defendant states that on or about the 6th day of April, 1914, the plaintiff exercised its option to withdraw from the said contract and declined to make delivery of the goods, wares and merchandise purchased thereunder and that the plaintiff notified this defendant that it had exercised its said option in this manner.
“This defendant, for a further answer, states that by the terms of said contract between the plaintiff and this defendant, this defendant guaranteed the said payments by the Ottawa Security Company to plaintiff for goods, wares and merchandise sold to the said Ottawa' Realty Company. That the first payment for $8000 became due on April 3, 1914. That no demand was made on the Ottawa Realty Company at said time for said payment, nor upon this defendant, nor was this defendant notified of any default of the Ottawa Realty Company in respect thereto, but on the contrary, this defendánt states that five days thereafter it was notified by plaintiff that the plaintiff exercised its option to refuse to deliver said goods, wares and merchandise to the Ottawa Realty Company, said option being so exercised after the first payment was due and before the second payment became due.
“Wherefore, Having fully answered, this defendant prays to be hence dismissed with its costs.”

Upon the trial it was shown by plaintiff that both defendants made default in the payment of the sum of $8,000, which wag agreed to be paid on April 1, 1914, and that defendants likewise made default in the payment of the sum of $4000, which was to be made on the 15th day of April, 1914. Following the default in the payment of the sum of $8000, being the sum which first fell due, plaintiff on the 4th day of April, 1914, next after such default, wrote to both defendants exercising its option to require the payment of $8000 in advance of the delivery and laying of any carpets. The letter - to appellant herein is in all material respects a substantial rescript of that to the Ottawa Realty Company, and we need take up space with but one of these letters. The letter to the appellant Chicago Bonding & Surety Company, address, date and signature alone admitted, reads thus:

“Gentlemen: We beg to call your attention to the bond executed by the Ottawa Realty Company as principal and yourselves as surety to us, under date of March 18, 1914. We take this opportunity of advising you that we exercised our option to require the payment of $8000 in advance of the delivery and laying of any carpets, and that the Ottawa Realty Company defaulted and still is in default in making this payment. Under the conditions of the bond, your obligation to pay this sum has matured. We are enclosing you a copy of a letter which our attorneys have this day written to the Ottawa Realty Company.”

Such further facts as shall become necessary in the course of our discussion of the case will be found set forth.in the subjoined opinion.

Appellant bonding company, the sole appellant liere, urges upon our attention four separate alleged errors, viz.; (a) that the court erred in giving to the jury a peremptory instruction to find for the plaintiff in the full penal sum of the bond; (b) that the court erred in refusing to give to the jury a requested peremptory instruction to find for defendants; (c) that the court erred in refusing- to alloV defendants to prove that none of the goods agreed to be sold by plaintiff to defendant Ottawa Realty company had ever been by plaintiff either delivered or tendered to the vendee; and (d) that the court erred in refusing defendants’ request to instruct the jury that in the event of a finding for plaintiff, the verdict should be for nominal damages only.

Regarded from the viewpoint of the facts in this case these four assignments of error are practically identical. So far, at least, are they cognate that the solution of either one of them will inevitably decide this case. Since, however, it can hardly be denied that, as there was a conceded breach of the conditions of the bond sued on. the plaintiff is in any event entitled to nominal damages, we may look to see whether upon the pleadings and case made, plaintiff was entitled to anything more than nominal damages.

Plaintiff upon the trial offered the contract for the purchase of the goods in controversy; the bond sued on; showed default in making, upon the dates prescribed, the payments agreed to be made; proved its election to require payment of the $12,000 advance payment on the purchase price before it should deliver or lay any of the carpets, or other goods agreed by it to be sold, and thereupon rested. Defendant offered to prove that no part of the goods in dispute was ever delivered to defendants, or to either of them. This offer being refused defendants excepted, but they neither made nor offered to make further proof in the case.

We think it sufficiently appeared from the pleadings and -proof of plaintiff- that no such delivery or even offer of delivery was ever made by plaintiff. This may be deduced from the pleadings and from the facts that the letters of plaintiff to defendants advised the latter that it had “exercised its [our] option to require the payment of $8000 in advance of the delivery and laying any carpets,” as pursuant to the terms of the contract of sale, it was authorized to do. Plaintiff insists that it may upon such a state of the evidence recover the full penalty of the bond sued on, without showing delivery of the goods, or any offer to deliver them, without showing that the goods were made up or laid, and without showing any actual damage accruing to it from defendant Ottawa Realty Company’s breach of the conditions of the contract. The assignments of error of defendants, each specifically, and in effect collectively, deny most strenuously the right of recovery of the full penalty of the bond upon these facts. Within the above respective contentions lies the only question presented upon this appeal.

We premise that it is among the conceded law of the C-ase (a) that since the bond in suit referred to the contract, and the contract in turn referred to the bond, this bond is to be construed in the light of the terms of the contract (Forst v. Leonard, 112 Ala. 298; Sewing Machine Co. v. Winchel, 107 Ind. 260; Jordan v. Kavanaugh, 63 Iowa, 152), and (b) that the liability of the surety upon the bond here can in no event exceed that of the principal therein. [Stevens v. Partridge, 109 Ill. App. 486; Barrie v. Seidel, 30 Mo. App. 559.] So much being conceded, is plaintiff entitled to recover the full penalty of the bond? We think not.

Upon the premises conceded by plaintiff (or if not conceded by it, which the law of the case concedes for it), the case stands in all respects as if the vendee; though it agreed to pay one-half of the purchase price of the goods in advance, made default therein; whereupon the vendor, having by contract the right to refuse to proceed in the fulfillment thereof by a delivery of the goods, does so refuse on account of the vendee’s breach. What in-such case is the measure of damages! Is it the full amount of the advance payment agreed to he made, or is it (upon proper pleadings and proof) the profit, if any, which the vendor lost by the vendee’s breach, or, in short, is it the difference between what the goods were sold for, and the cost of procuring, or buying them on the market, and of cutting, making and laying them! We think this measure of damages is the profit, if $ny, which plaintiff would have made and not the full amount of the cash payment agreed to be made.

Even a casual examination, of plaintiff’s petition discloses that it sued in all respects as if the guaranty bond counted on were an unconditional and independent promise to pay a sum certain upon a day certain, thus disassociating it wholly from the contract of sale to which the bond itself refers as the sole actual consideration for its existence.

Eor, it will be noted that there is neither averment nor proof by plaintiff that it ever made these carpets, or laid them, or that it has ever delivered them, or any part thereof, or offered so to do. Some color would be lent to plaintiff’s contention if it had cut these carpets and made them up to measure to fit the rooms of the hotel for which they were contracted; but nothing of the sort appears. On the contrary the inference is patent that nothing whatever has been done by plaintiff toward fulfilling the contract upon its part, save and except to demand and sue for its “pound of .flesh.” Exceptions to the rule which we are constrained to follow, will ho found in the hooks and cases; but these exceptions are bottomed upon considerations germane to those we foreshadow above. In other words, they are cases wherein the vendor agrees to manufacture for and sell to the vendee special articles, which are of negligible value, or not readily vendible on the open market. In such a' ease, upon a breach of a condition precedent, and where by reason of having made the goods the vendor is damaged, he may tender them to the vendee, and on the latter’s refusal to accept, hold them for the vendee, and recover the full agreed price. [Black River Lumber Co. v. Warner, 93 Mo. 374.] But the instant case is not, upon the pleadings and proof, that sort of case. Granting (for the argument’s sake at least, since the point does not confront us) that the necessity to cut and make up the carpets contracted for, so as to fit them to the rooms of a designated hotel, would, caeteris paribus, have made that sort of case of it, yet the difficulty and difference lie in the fact that it had not when the suit was brought reached the state which would warrant the application of the rule stated in the excepted cases. [Thornberry v. Thompson, 69 Mo. 481; Black River Lumber Co. v. Warner, supra.]

We are constrained to hold that upon the case pleaded and proved, plaintiff was entitled to nominal damages only. We are not saying that upon proper pleadings and proof plaintiff may not be entitled to recover the profits, if any, which it lost by the ven,dee’s breach of the contract, which would seem to be the difference between the agreed price to be paid for the goods, and the cost of buying them upon the market and making them up and laying them down in the rooms for which they were intended. [Harrison Wire Co. v. Hardware Co., 97 Mo. 289; Black River Lumber Co. v. Warner, 93 Mo. 374.] But the latter point is not presented, and we are not called on to rule on it here.

There are a few isolated cases, for the most part meagerly reported, which seem to squint at the rule contended for by respondent. But a casual glance at the situation makes apparent the shocking injustice of a rule which permits the plaintiff to go out of court with both the money for the goods and the goods themselves, or, to adopt the graphic vernacular of appellant’s learned counsel, to go out of court “with the goods in one hand and the money in the other, laughing the while in its sleeve at the unlimited follies of the law.” [Kingsland Mfg. Co. v. Iron Co., 29 Mo. App. 526.] This situation is appreciated by respondent for its learned counsel advise us that such an insufferable contingency could be averted, by a cross-action for damages for nondelivery of the goods, if payment having been made, such delivery should be refused. Such a suggestion loses sight of the facts (a) that it would necessitate two actions for the same ultimate end, where but one should suffice; (b) that thereby the resultant damages would be maximized rather than minimized, which latter, other things being equal, the law enjoins (Taussig v. Mill & Land Co., 124 Mo. App. 209; Frederick v. Willoughby, 136 Mo. App. 244.), and (c) that it would (as we read between the lines) result here in the doing of a wholly futile thing — in the expense and labor of making and offering goods to the principal in the bond, which its condition and situation render it unable either to accept or use. [Williston on Sales, sec. 566.] Even if the cases urged upon our attention as stating a different rule were plain and well considered (and they are neither), we would not be disposed to follow them. The rule here contended for by learned counsel for plaintiff is seemingly bottomed upon a statement of a unique rule by the learned author of Benjamin on Sales (l. c. sec. 762.), which rule is bottomed upon the single case of Dunlop v. Grote, 2 Car. & Kir. 153, decided by Ceesswell, J., in the Liverpool Assizes, at nisi prius, and wherein the whole of the court’s opinion is: “The plaintiffs are entitled to recover the whole sum, as it was agreed to be paid upon a day certain. ’ ’

The present English rule, and the rule followed in many of the jurisdictions of this country, is thus stated by a well-known writer:

“The general rule of the English law and of many .States in this country denies an action for the price unless the property has passed, and the reason for the rule is plain. As the seller still is owner of the goods, he ought not to be given also the price for them. His damage is the difference in value between what he now has, namely, the goods, and what he would have had if the defendant had not broken his contract, namely, the price. Nevertheless, a large number of States do not follow the English law in this matter. If the reason why the property in the goods has not passed to the buyer is because the buyer wrongfully refused to take title when offered to him, according to the weight of authority, perhaps, in this country, the seller may recover the full purchase price.” [Williston on Sales, sec. 562.]

In this State we have not followed the rule enunciated in the final sentence of the above excerpt, save and except in cases wherein specific articles not readily vendible on the open market were agreed to be manufactured by the vendor and sold and delivered to the vendee. We have, however, followed'the rule of the last sentence of the above excerpt in cases wherein the subject-matter of the sale-contract was a specific article to be manufactured by the vendor for the vendee, and wherein the vendor had completed his contract and performed all that he was required to do, and have held that in such a case upon the refusal of the vendee to accept the goods an action Avould lie for the full contract price. In the latter event the vendor would of course hold the manufactured article for the vendee. [Black River Lumber Co. v. Warner, 93 Mo. 374.] And even in such a case we have also ruled that, where the specified article had not yet been manufactured by the vendor, the measure of damages upon a breach of the contract Avould be the difference between the contract price, or price agreed to be paid 'for the goods, and the cost of manufacturing the articles, including material and labor used therein or expended thereon. [Black River Lumber Co. v. Warner, supra.]

The error and logical futility of the rule upon which the instant judgment is bottomed is we think readily apparent, or if'not patent, easily demonstrable. For if partial payment, as here adjudged and as plaintiff urges, be enforced, before title passes, or delivery i is made or tendered, then by the same rule full payment under similar circumstances can likewise be enforced before the. title passes, or delivery or tender thereof be made. If such full payment be adjudged and enforced in such a case (and the difference between full payment and the facts of the instant case is only one of degree), the result in the end and in the last analysis would he exactly the same. For after the expense and delay of two actions, perhaps, the damages (or profits, if the vendor honestly fulfilled his contract without suit to compel him to do so), accruing to, or recoverable by the vendor, would be precisely those to which appellant contends the vendor here is entitled. This is so for the reason that if the vendor is permitted to recover the purchase price, before title passes, or delivery is made or tendered, he must then either (a) proceed to fulfill his contract by delivering the goods, or (b) if he refuse be sued for damages for his breach. If the vendor honestly avails himself of the first contingency and delivers the goods, he merely pockets his profits, which are in lieu of, and which' merely equal the measure of, his damages upon the rule to which we have' herein adhered. If he refuses to deliver the goods, he must return the money which he unlawfully received— for surely he cannot retain both goods and money (Kingsland Mfg. Co. v. St. Louis Iron Co., 29 Mo. App. 526)—and respond to the vendee in damages for breach' of the contract to sell. For such latter breach the measure of damages is again the profits, if any, which would have accrued to the vendee by the fulfillment of the contract of sale, that is, the difference between the agreed price and the market price. By following either route we reach in the end an identical destination. In short, the only practical difference between the relief afforded by the rule applied nisi and that which we think should obtain, lies in the fact that in the one case two laAvsuits are required, while in the other but one suffices. Moreover, it has been given as a. reason against the rule which prescribes enforcement of payment before title passes, that the vendee should not have thrust upon him goods which he does not want and which he may be unable to use. [Williston on Sales, sec. 566.] But we need not take up space to examine the logic or morals of this latter reason. "We deem the reasons stated and the authorities cited convincing and sufficient.

It follows that as there was neither allegation nor proof in this case that plaintiff had done any act whatever toward fulfilling the contract of sale under discussion here, except to demand the payment to it of $12,000, before it took any steps toward fulfillment thereof, the judgment here cannot stand.

Let it be reversed and remanded for proceedings consistent not inconsistent with what we have said herein.

All concur.