author: BROWN, C.

text:
    JOSEPHINE BENSBERG et al. v. WASHINGTON UNIVERSITY et al., Appellants.
    Division One,
    June 28, 1913.
    1. WILL CONTEST: Burden of Proof: Prima-faoie Case. The burden is upon the proponents of a will to show that the testator was of sound mind, and such, proof is a requisite of their primafacie case, although they may be aided therein by proof intro- ” , duced by contestants.
    2. -: Testamentary Capacity: Chronic Alcoholism: Delusions. Held, that there was evidence tending to prove that testator was, when he made his will, suffering from delusions caused by chronic alcoholism, and the issue of testamentary capacity was for the jury.
    Appeal from' St. Louis City Circuit Court. — Mon. Virgil Buie, Judge.
    Affirmed.

      Eliot, Chaplin, Blayney & Bedal, for appellant, Washington University.
    (1) Where an issue of fact is raised and tbe testimony in support of said issue is all on one side and uncontradicted, still the question must be referred to tbe jury, wbo are tbe triers of fact and wbo must pass upon tbe credibility of tbe witnesses. Dalton v. Poplar Bluff, 173 Mo. 39; Printz v. Miller, 135 S. W. 19; Gordon v. Bnrriss, 141 Mo. 602. However, there is authority to the contrary, that where the evidence is undisputed, is one way, and is of such brand of cogency that but one just conclusion can be drawn, the court may deal with it as a matter of law. Cornovski v. Transit Co., 207 Mo. 273; Howard v. Hurst, 131 S. W. 1. (2) "Where an issue is raised in a will contest on the execution of the will, and the testimony pertaining to the execution was uncontradicted, the court declined to pass upon the question in one case as to whether the trial court could properly have dir rected the verdict of the jury on that issue. Gordon v. Burriss, 141 Mo. 602. The practice of so doing has been followed, and approved, however. Schierbaum v. Schemme, 156 Mo. 1; Southworth v. Sonthworth, 173 Mo. 59; Teckenbrock v. McLaughlin, 209 Mo. 533; Beyer v. Schlenker, 131 S. "W. 465. (3) Whatever the correct rule may be, there is no occasion to leave the question for decision to the jury where, during the trial, the issue is "waived and the facts of execution are admitted. Gordon v. Burriss, 141 Mo. 615; Monroe v. Railroad, 135 S. W. 1016. (4) When one of the witnesses to a will is dead, proof of the execution of said .will is made by evidence of the handwriting of the testator and of the deceased witness, and of such other circumstances as would he sufficient to prove such will on a trial at common law. R. S. 1909, sec. 552. (5) The attestation of a subscribing witness to a document may be used when the attester is’unavailable as evidence of the document’s execution, and the attesting signature need not be accompanied by an attestation clause. The fact of attestation is a testimonial assertion that all of the facts required to be done pertaining to the execution have been done. 1 Wigmore on Evidence, secs. 1505-1514. (6) Nor can contestants raise the point that there is no proof that the deceased attesting witness signed in the presence of the testator, since they in fact admit snch to have been the fact when they admit that said deceased witness was an attesting witness. (7) The legal test of the requisite mental capacity to make a valid will is measured by the following rule: One must have capacity to comprehend all of his property and all of the persons who reasonably come within the range of his bounty, and have sufficient intelligence to understand his ordinary business, and to know what disposition he is making of his property. TIolton v. Cochran, 208 Mo. 410. (8) Proof of delusions or hallucinations entertained by a.testator is no evidence of lack of testamentary capacity unless such delusions or hallucinations relate to his property and the will itself is a direct result of partial insanity or monomania indicated by such delusion or hallucination. Benoist v. Murrin, 58 Mo. 307.

      Rassieur, Kammerer & Rassieur and Schnur* macher & Rassieur for respondents.
    (1) Where there is an issue as to whether the will was properly executed and attested, the burden rests upon the proponents to establish due execution, and even though there is no countervailing testimony, the question must be submitted to the jury. It is the province of the jury to pass on the credibility of the witnesses. Gordon v. Burris, 141 Mo. 602; Cowan v. Shaver, 197 Mo. 203; Dalton v. Poplar Bluff, 173 Mo. 39; Prince v. Miller, 135 S. W. 196. (2) If at the time of the execution of the will the testator did not have sufficient mental capacity to understand what he was doing, or to comprehend the nature, extent or value of his property, or who would be the natural objects of his bounty, then he did not have mental capacity sufficient to make a will. Crum v. Crum, 231 Mo. 626. (3) Where a new trial is sought on the ground of newly discovered evidence, and such evidence is very material, and not merely cumulative, and' the party seeking the new trial was not guilty of laches in the matter, a new trial should be granted. Investment Co. v. Hoyt, 164 Mo. 140.
   BROWN, C.

This suit was brought May 15, 1907, in the circuit court for the city of St. Louis, to contest the will of Charles Seitz, who city, February 1, 1907. The petition is as follows:

“Josephine Bensberg and Laura Seitz, Plaintiffs, vs. Washington University, a Corporation, German General Protestant Orphans Home, a Corporation, Missouri Historical Society, a Corporation, and Wm. J. Murray and the St. Louis Union Trust Company, a Corporation, Executors of the Last Will of Charles, Seitz, Deceased, Defendants.
“Plaintiffs aver that at the times hereinafter referred to the defendant. Washington University was and is a corporation, duly incorporated under the laws of Missouri; the defendant German General Protestant Orphans Home was and is a corporation, duly organized under said laws; the defendant Missouri Historical Society was and is a corporation duly organized under the said laws, and the defendant St. Louis Union Trust Company was and is a corporation duly organized under said laws.
“Plaintiffs further allege that they are the only children and sole heirs-at-law of Charles Seitz, late of the city of St. Louis aforesaid, who departed this life on the 1st day of February, 1907. That after the death of said Charles Seitz, deceased, -to-wit, on February 5, 1907, an instrument in writing, bearing date the 31st day of May, 1905, purporting to be the last will and testament of said Charles Seitz, but which was not, in fact, his last will, was presented to the probate court of the city of St. Louis for probate by the defendants and alleged by them to be the last will and testament of said Charles Seitz and said instrument was by said probate court on said day duly admitted to probate.
“That said instrument is in words and figures as follows, to-wit:
“ ‘I, Charles Seitz, of the city of St. Louis, State of Missouri, of sound mind and memory, do make, declare and publish «this, my last will and testament, hereby revoking all other wills and testaments heretofore made by me.
“ ‘.After the payment of my just debts and funeral expenses, I give, devise and bequeath to the German General Protestant Orphans’ Society of No. 4447 Natural Bridge Road of the city of St. Louis, one thousand dollars ($1000); Missouri Historical Society, No. 1600 Lucas Place, of the city of St. Louis, one thousand dollars ($1000), and the balance of my estate of which I may die seized, possessed or entitled, whether real, personal or mixed, wheresoever situated and whatever nature, in equal parts, share and share alike, in fee simple, absolute to my two children Josephine and 'Laura Seitz, and in case of the death of either of my two children without heirs of their body, to the Washington University of the city of St. Louis. I direct and require that any and all real estate held by anyone in trust for me shall be at once conveyed and transferred to my aforesaid children in absolute.
“ ‘I appoint herewith my friend William J. Murray and the St. Louis Union Trust Co. of the city of St. Louis to execute my last will and testament.
“ ‘In witness whereof I have hereunto set my hand and áffixed my seal this 31st day of May, 1905.
“Charles Seitz. (Seal)
“ ‘The above and foregoing instrument of writing was this 31st day of May, 1905, signed, sealed by the above named Charles Seitz as and for his last will and testament in our presence of each of us who at his request and in his presence have hereunto set our names as attesting witnesses thereof.
“ ‘John Rueckert,
‘ ‘ ‘ Christ A Stadler.
“ ‘It is further my wish and desire that after my demise I be buried heside the remains of my dear mother in Bellefontaine Cemetery of St. Louis, being lot No. 4413 of said cemetery.
“ ‘Also that a suitable monument to be placed on said lot not to exceed the cost of five thousand dollars.
“ ‘Charles Seitz/
“That the original of said pretended will is on file among the records of said probate court. That said Charles Seitz was at the time of his demise possessed of a large amount of real estate in the City of St. Louis of the value of about forty-five thousand dollars, having an annual rental value of about four thousand dollars, and of personal estate of the value of about sixty thousand dollars, all of which, excepting one thousand dollars given to the defendant German General Protestant Orphans Plome under the name ‘German General Protestant Orphans Society of No. 4447 Natural Bridge Road of the City of St. Louis’ and one thousand dollars given to the defendant Missouri Historical Society, was by said alleged will intended to be wrongfully devised and bequeathed to said defendant Washington University in case either of the children aforesaid of said Charles Seitz (the plaintiffs herein) died without leaving children of her body.
“Plaintiffs further state that defendants Wm. J. Murray and the St. Louis Union Trust Company,' who were named as executors in said pretended will" have duly qualified as such thereunder and letters testamentary were issued to them by said probate court and they are now acting as such executors and have taken possession of said estate in the execution of said pretended will and are now in charge thereof.
“Plaintiffs further» state that said instrument purporting to he the last will and testament of said 'Charles Seitz was not and is not the free act and deed of said Charles Seitz and was not and is not his last will and testament; that said pretended will is absolutely null and void, by reason of the following facts, which plaintiffs allege, to-wit:
“1st. That said instrument was not'executed by said Charles Seitz as his last will, or by any person by his direction and in his presence and that the same was not attested as and for his last will by at least two competent witnesses, subscribing their names to the said instrument in the presence of said Charles Seitz and in the presence each of the other.
“2nd. That said Charles Seitz was not, on or about the 31st day of May, 1905, the date when said instrument purports to have been signed, and was not for many years prior thereto, of sound and disposing mind; that about fifteen years before his death he began to be affected by alcoholic dementia, caused by excessive indulgence in alcoholic stimulants, which generally impaired his health of body and mind thereafter and up to the time of his death; that he continued such excessive use of alcoholic stimulants from time to time and thereby still further weakened both mind and body; that in consequence of his said physical and mental disease, said Seitz, at said date, to-wit, May 31, 1905, and for a long time prior thereto, had been so weak and infirm in body and mind that he was unable to attend to his ordinary- affairs and was wholly dependent upon others for the management of the same, and by reason of his physical and mental condition the mind of said Charles Seitz was affected to such an extent that he was at no time entirely rational, and that he had not on the 31st ■day of May, 1905, the date when said alleged will is said to have been executed, sufficient mental capacity to comprehend and understand the property he then possessed nor the persons who were the natural objects of his bounty, nor could he understand the meaning’ or effect of said paper which purports to be a will, nor what disposition was thereby made of his property, nor its effect upon these plaintiffs, who were his sole heirs at law.
“Wherefore, plaintiffs allege that said instrument above referred to, purporting to be the last will and testament of said Charles Seitz, deceased, is not his last will and testament, and they therefore pray that said instrument be adjudged and decreed to be absolutely null and void, and that, to that end, an issue ..be made up whether or not said writing produced and admitted to probate as aforesaid* be the last will and testament of said Charles Seitz, deceased, and plaintiffs further pray judgment against said defendants for their costs and for such other relief as may be meet and proper in the premises.,"

The defendant Orphans Home filed answer, but withdrew it before the trial and let judgment go against it nihil dicit. The other defendants answered putting in issue the allegations of the petition and propounding the will. At the trial the defendants introduced Mr. Christopher A. Stadler, one of the witnesses to the will, who testified that he was a collector for the Murray-TIayden Realty Company and had been for seven years, and that during that time he had known Mr. Charles Seitz, who had a desk in the office of the company, and that he saw him from three to four times a day. As collector for the company he collected rents from buildings that Mr. Seitz, was interested in. On May 31, 1905, the witness came in, and was told by Mr. Rueckert, the bookkeeper, who was staying in the front office, that Mr. Seitz desired to see him. He went back to the rear, and found him sitting at his desk. . He had the will prepared in Ms own handwriting, and signed by himself at the bottom of the body of the will on the first sheet, while the name of Mr. John Eueckert, the bookkeeper, appeared signed to the attestation at the bottom of the same sheet in his own handwriting. The witness, at Mr. Seitz’s request, took the pen of the latter and signed his name under that of Mr. Eueckert. On the next sheet was written the paragraph relating to the testator’s burial and monument and signed by Mr. Seitz. At the time Mr. Seitz asked the witness to sign the paper he stated that it was his will. The following questions were then asked the witness by defendants and answered.

‘ ‘ Q. I will ask -yon what was the mental condition of Charles Seitz at the time he requested you to sign this paper as his will and yon signed it? A. He had been drinking prior to that day.

“Q. Just answer the question. What was his mental condition?' A. He looked all right to me. He looked as though he was able to transact business.”

He stated on cross-examination' that he did not see either the testator or Mr. Eueckert sign the will and that Mr. Eueckert said nothing about it. He merely said that Mr. Seitz desired to see him. Witness did not see the part written on the second sheet. He said that sometimes Mr. Seitz would be absent from his place of business for days or a week, at which times he would usually be on a drunk. This would occur two or three times a year and last from three to four weeks, during which time he was of a wandering disposition. He would wander. His memory seemed wandering. He would see things that did not exist, point to people about to break into his safe when there were no people and would say do you see those men at my ,fe. These things would happen before he would get into the hospital. When he asked witness to sign the will his eyes looked glassy but he looked all right. There were often times when he was not right when witness thought he was. On the day before the signing* of the will he was drinking and left the office. He afterward went to Mullanphy Hospital. On the day the witness signed the will his eyes were glassy and he looked as though, he might have been wandering at the time, but still there were often times when he looked that way. The witness was a warm friend of Mr. Seitz and had been for years before he died. He did not do much business himself. All he did was to make entries in his ledger, and carried his liquor like a man. When under the influence of liquor you could notice it a great deal in his talk. -He was more loquacious then and would keep on at one subject for hours at a time. After introducing evidence of the handwriting of Rueckert as a witness the defendants rested.

The evidence presented by the contestants tended to show that the testator during his lifetime had accumulated considerable property, consisting of St. Louis real estate and investment securities. He had been married, and the two plaintiffs, Mrs. Bensberg, who was married to Mr. Arthur Bensberg in 1900 and has since been known by that name, and Miss Laura Seitz, were the children of the marriage and ■are his sole heirs. Mrs. Seitz obtained a divorce from him in 1883, when she executed to him a release of her right and interest in all his property, present and prospective. Although of limited education he was a great reader of historical works and was a member of the Missouri Historical Society and the St. Louis Mercantile Library. He had been a bookkeeper and accountant, and was a fine penman. This is indicated by the will itself which was written by Mm, and is an excellent specimen of penmanship. His alcoholic history furnishes the principal material for this case. It comes into the record in 1893, when he came as a patient to St. Vincent Asylum for the Insane suffering from “acute alcoholism” or “delirium tremens,” and remained about a week, during which he was treated for that disease. He came again to the same institution several times in 1894 afflicted with the same trouble, and again several times in 1895. During the most of March and April, 1897, he was in the same institution suffering from delirium tremens and alcoholic dementia with hallucinations. It is explained in the evidence that alcoholism is a disease brought on by the excessive use of alcohol; that it is progressive, and repeated attacks bring about the inevitable result of delirium tremens and that delirium tremens brings about dementia which is a form taken or result produced by chronic alcoholism. The acute attacks are characterized by hallucinations and delusions, and weakening of the powers, physical, mental and moral. The hallucinations passed away but the delusions continued. In the language of an expert witness, “One attack of delirium tremens impairs the mental faculties. Subsequent attacks begin a progressive impairment of these mental faculties; not only the mental faculties, but the moral and the physical energies!” After the first attack the patient is not normal. The mental, physical and moral impairment is progressive; “constantly weakening, constantly deteriorating.” Hallucinations are tricks of the senses. One may see in delirium tremens spiders, serpents or bugs where there are no such things. Delusions are false beliefs, as when one believes that another is his enemy or that he is pursued by persons who are trying to do him harm, or that he is the object of persecution or is being poisoned. The hallucinations pass away but the delusions remain.

Among the delusions attributed in the evidence to Mr. Seitz was that he was persecuted — that he had no friends, or that they were ■ trying to do him up, or get his money. A physician who had known bim for fifteen years, and was called in- consultation during the attack from which he died, stated that he had been afflicted with chronic alcoholism during the whole time he had known him; that this is a definite disease progressive in its nature; that repeated attacks led to chronic alcoholism, the inevitable result of which is dementia. Mr. William J. Murray, president of the Murray-Hayden Realty Company where Mr. Seitz had his desk, and an executor named in the will, testified that when. Mr. Seitz had been drinking hard for a week or ten days he would have him put in Mullanphy Hospital, to which his patronage in that respect seems from the evidence to have been transferred from St. Vincent; that he started in drinking about the first week in May, 1905; that he saw him drunk on the 30th of that month and saw him at the office on the 31st, the date the will was made, bloated from drink, but noticed .nothing unusual in his conduct. That he had his tickets and was to sail for Europe on June 3rd, but the witness had them changed to June 17th and had Seitz put in the hospital on June 10th and taken out on the 16th. He was not then in a fit condition to sail, and his tickets were changed to the 24th, and he sailed on that day. This witness stated positively that his condition was bad and that he was of unsound mind at the time of and prior to the making of the will.

Ur. Hermann, who had been in charge of the St. Vincent Hospital as medical superintendent ever since 1891, testified that he was called in consultation by Mr. Murray and saw Mr. Seitz at the Mullanphy Hospital before his death; that he died at that time of chronic alcoholism from which he had suffered to witness’ knowledge -from the year 1893 to the date of his death, that in his opinion the condition of his mind was progressively worse, progressively deteriorating during all that time and up to the time of his death, and that he did not think that on May 31, 1905, the time when he made the will, that he had sufficient mind to apprehend what he was about to do, nor the property he was about to dispose of, the parties to whom he was giving it and the relation they sustained to him, nor to remember exactly what his duties were towards his relations and the property that he gave.

At the close of the evidence the court instructed the jury to find that the paper writing propounded was the last will and testament of Charles Seitz; to which the contestants duly excepted. The jury returned a verdict accordingly. The contestants thereupon filed in due time their motion for a new trial, complaining, among other things, of the action of the court in giving the peremptory instruction.

They also filed in due time an amendment or supplemental motion for a new trial on the ground of newly discovered evidence, accompanied by affidavits of diligence and the affidavit of Edmund G-. Murray, the newly discovered witness, stating that on the morning of May 31, 1905, he came to the office and found Mr. Seitz engaged in writing the will by copying from another paper. That he thought there was a man in the front part of the office trying to get into his safe, and witness, to allay his fears, closed the partition door. He then showed the witness the will and asked him to sign it, which the witness refused because he did not think Seitz knew what he was about. He.afterward saw both Rueckert and Stadler sign it. This motion was sustained by the court in the following order.

“Now, at this day the court having duly considered plaintiff’s motion for a new trial heretofore filed and submitted herein, doth order that said motion be and the same is hereby sustained for the reason that the court erred in its instruction to the jury and that the verdict and judgment entered herein on December 13, 1907, be and the same is hereby set aside and for naught held.”

The defendants duly excepted find have taken their appeal from .this order.

The important question in this case is whether or not the court did right in determining, by its order granting a new trial, that the testamentary capacity of the testator should have been submitted to the jury. In the foregoing statement such facts have been taken from the mass of the testimony before the. court as are peculiarly applicable to such an inquiry.

It has been the policy of the laws of this State as well as of the common, law wherever it prevails, to permit, to the fullest extent consistent with the public welfare, the testamentary disposition of property. While the privilege has been subjected to limitations like those imposed between husband and wife, the testator may, in the absence of any such wholesome restriction, disinherit whom he will, without regard to the moral obligations or restraints arising from ties of blood or the dictates of common humanity, (Meier v. Buchter, 197 Mo. 68), although we have recognized these sentiments as incident to the normal mental equipment, and their absence as some evidence of mental unsoundness. [Mowry v. Norman, 223 Mo 463, 471, and authorities cited.]

Notwithstanding this liberal policy the Legislature of this State has fully appreciated the correlative right of the individual, in the performance of this last act, to be protected not only against those who may be dissatisfied with the disposition which his conscience and affections have dictated, but also against disease, which sometimes perverts the moral sense, and transforms love and healthy solicitude into dislike, suspicion and distrust. To this end our statutes of descents, distributions and dower make what the sentiment of the whole people has determined to be a just disposition of the property of intestates and provide that testimony relating to the validity of wills shall be pointed out upon the same paper whereon they are' written; and they are denied effect until it shall have been publicly proven not only that the testator signed, but “that he was of sound mind” at the time of doing so (E. S. 1909, sec. 551). This proof is to be made by the witnesses to the will if they are available (Id., sec. 553); if not, then by other evidence sufficient to prove the will in a trial at law. If, after this formal proof shall have been made, any person interested shall contest the validity of the will, an issue is to be made up whether the writing be the will of the testator or not, which shall, if either party require it, be tried by a jury.

The statutes to which we have referred speak definitely as to the burden of proof, and this court has insisted upon a literal compliance with its requirements. As was said through Graves, J.,' in Mowry v. Norman, supra: *1 The burden is upon the proponent of the will, or the defendant in this case, to show the mental capacity of the party making the will, and so long and so recently has this doctrine been announced that citation of authority is not called for.” That this burden includes proof of the fact that the testator “was of sound mind” is a statutory rule. The courts are charged with- its enforcement in the manner pointed out by the statute, which requires a trial by jury, whenever, in the time and manner prescribed, it shall be required by any person interested. In such a case it is the verdict of the jury which establishes or rejects the will (Gordon v. Burris, 141 Mo. 602.) In that case the court said: “Ordinarily the formal judgment of the court upon the verdict of a jury is necessary to establish conclusively the fact tried, but this statute makes the verdict of the jury, upon the issue tried, final and conclusive. By the verdict the jury finds the paper writing produced to be the will of Lucinda Burris, and this verdict is entered upon the records of the court. Ye are of opinion that the record entry is sufficient in form to constitute a formal establishment of the will.”

As we have already seen the statute requires that the issue submitted to the jury shall be “whether the writing produced be the will of the testator or not,” and that upon this issue the burden lies upon the pro-: ponent of the will. He must establish not only the execution of the will but the mental capacity of the testator. [Bradford v. Blossom, 207 Mo. 177, 228, and cases cited.] He is “required to prove every affirmative fact that is essential to the execution of a valid will, even though the contestants offer no evidence at all. . . . The ultimate question in the case is, is this the last will and testament of the alleged testator? and the affirmative of that issue is on the proponents.” [Bradford v. Blossom, supra, 1. c. 229, quoting Cowan v. Shaver, 197 Mo. 1. c. 212.] The institution of the contest supersedes the formal proof of the will in the probate court, so that upon the issue prescribed by the statute, the court should take the proof upon which the jury is to establish or reject the will, and the contestants cannot take a voluntary non-suit or dismissal. [Bradford v. Blossom, supra, 1. c. 228, and cases cited.] If the defendant fails to sustain the burden so imposed upon him it becomes the duty of the trial court to direct a verdict rejecting the will. [Bradford v. Blossom, supra, 1. c. 231.]

It has however been uniformly held by this court that when the proponents of' the will, have made a Pr^ma ^acie case R devolves upon the contestant to .overthrow it by evidence. [Teckenbrock v. McLaughlin, 209 Mo. 533, 539; Gibony v. Foster, 230 Mo. 106, 131; Sehr v. Lindemann, 153 Mo. 276, 288.] Reverting to the statute by which this proceeding was created, we find that it clearly indicates the evidence that shall constitute a prima ■facie case for the proponent. Section 551 UR. S.. .1909) prescribes the substance of the testimony to be given by the witnesses to the will in no uncertain language. They are to make oath or affirmation that the testator signed the writing as his last will, or that some other person signed it by his direction, in his presence, and that he was of sownd mind. The following section provides that when one of the witnesses to the will shall be examined and the others are dead,, as in this ease, then such proof shall be taken of the-handwriting of the testator and of the dead witness- and of such other circumstances as would he sufficient to prove such will on a trial at common law. The evident theory of this statute is that the testimony of the witnesses to the will of the facts stated is sufficient to make a prima-facie case establishing it, and that if only one of the witnesses be available, his testimony to the same facts must be taken and other evidence introduced sufficient to establish the will in a trial at common law. In any event it must be shown that the testator was of sound mind. Judged by this standard, the defendants, when they closed their evidence, were far from having’ made a prima facie case. The will, it is true, was shown to be in the handwriting of the testator as was also the signature of the one of the two witnesses who was dead, but the only living witness to its execution failed and seemed unwilling to testify that he believed the testator to have-been of sound mind at the time of its execution, and no other evidence bearing upon that question had been introduced. The contestants, however, instead of taking advantage of that circumstance, introduced much evidence bearing upon the testamentary capacity of the testator, and exhibiting* his mental condition during a number of yeprs preceding the execution of the will, and up to the time of his death twenty months later. The evidence must now be considered together, and unless, in this history, there is some evidence substantially tending to show incapacity, it is evident that the burden resting upon the proponents has, with the help of the contestants, been sustained. If there is such evidence then the court did right in holding that the ease should have been submitted to the jury.

It has been long settled in this State that imperfect memory resulting from sickness or old age, forgetfulness of the names of persons one has known, idle questions, requiring a repetition of information, personal eccentricities and oddities are not evidence of such mental disease and deterioration as render one incapable of making testamentary disposition of his property. [Southworth v. Southworth, 173 Mo. 59, 72; Winn v. Grier, 217 Mo. 420, 446; Gibony v. Foster, supra, 1. c. 131.] They are incidents of human life, character and temperament which indicate no abnormal condition. They are the characteristics which distinguish one individual from another or mark the progress of human life from the cradle to the grave. It is true that it sometimes happens during the somatic life of the individual that degeneration affecting the mental activities may have reached such a stage that the mind becomes unreliable and useless as an aid to the possible activities that remain, and then common humanity suggests protection from dangers which must necessarily attend acts proceeding from impulses, either external or internal, uncontrolled and unadvised by reason. To blaze the line between responsibility and irresponsibility in this respect has long been a subject of consideration on the part of the courts. This line is a crooked one at best, being deflected here and there by the character of the act under consideration, whether it be the making of a will, which, when it takes effect closes the book of responsibilities and affections which for him constitute the category of life, a mere business transaction by which he may gain or lose, or an act which, when dictated by intent may constitute a crime involving his life or liberty; by the marks of the struggle between reason and decay, in which either may have temporarily gained control at the instant of the performance of the given act; and by many other things which the courts have discussed from time to time as they have had occasion. Throughout this discussion runs the thread of laudable purpose to fairly divide the judicial responsibility between judge and jury. This court, speaking by Lamm, J., in Turner v. Anderson, 236 Mo. 523, 544, formulated its conclusion as follows: “To have a mind and memory enough to make a will, testator should be able at the time to understand the ordinary affairs of life, the value and extent of his property, the number and names of the persons who were the natural objects of his bounty, their deserts with reference to their conduct and treatment of him, their capacity and necessities. He should have active memory enough to retain all these facts in his mind, without the aid of others, long enough to have his will made. Otherwise the law takes' from him power to dispose of his property by will. A mind not coming up to that standard is not a testamentary one.”

To understand the natural objects of one’s bounty, their deserts, their capacity and their necessities, orLe mixs^ necessarily be able to contemplate them with a mental and moral vision undistorted by any disease which substitutes in their stead the grotesque phantoms of a disordered imagination. "We know that under the compelling influence of insane delusion the loving mother sometimes becomes the slayer of her own children. She is able to recognize their identity to the deadly end, but no one would be so absurd as to say that she recognized their •deserts or her own obligations with respect to them; •or that she would be more competent to consider their interests in the subjects of her will than in their lives. This idea is expressed with great clearness in 1 Wharton & Stifle’s Medical Jurisprudence, sec. 67, where it is said: “The test of testamentary capacity supported by a great majority of cases ... is whether the testator had capacity, to understand the nature of the business in which he was engaged, and ability to recollect and comprehend the condition of the property he wished to dispose of, and understand and decide upon the method of such distribution, and • knowledge, memory, and capacity to comprehend his relation to the persons who were or might naturally be the objects of his bounty, and the relative merits of their 'claims, and was capable of making a rational selection among them according to his settled purpose.” In the next following section of the same work the author says: “Delusion has been held to be the true and only test of the presence or absence of insanity, delusion and insanity being regarded as almost, if not entirely, convertible terms. But an exception to the delusion test exists in cases of dementia or loss of mind and intellect.” Mr. Locke, in his famous Treatise concerning the Human Understanding (Book 2, Ch. 11, sec. 15) classifies these two kinds of mental unsoundness as madness and folly, and states his conclusion as follows: “In short, herein seems to be the difference between idiots and madmen; that madmen put wrong ideas together, and so make wrong propositions, but argue and reason rightly from them; but idiots make very few or no propositions, and reason scarce at all.” In the opinion'of the court in the matter of Forman’s will, 54 Barb. 274, it is said: “I repeat, that by the reported cases, and by the books, delusion, hallucination, is the legal test of insanity. Moral insanity is a disorder of the feelings and propensities. Legal insanity is a disorder of the intellect.” In the clear and analytical charge of Sir J. Hannen, in Boughton v. Knight, 3 L. R., Probate & Divorce, 64, 75, it is said: “It is for you to say whether the accumulation of this evidence . . . leads you to the conclusion that, whatever fluctuation there may have been in the condition of Mr. Knight’s mind, for some years before he made this will he had been subject to delusions, especially in reference to the character, the intention, and the motives of his son’s acts; and if you so find, then I must impress upon you that it becomes the duty of the plaintiffs to satisfy you that at the time the testator made the will he was free from those delusions, or free from their influence. ' The burden of proof, as it is called, is upon those who assert that the testator was of a sound and disposing mind. ’ ’

These authorities illustrate the distinction between the two classes of mental unsoundness which in law affect testamentary capacity. The first and most common is weakness of the-mind and will resulting from advancing’ age or physical infirmity; the other is a spontaneous conception of and belief in that'which is unsupported by reason or evidence, has no existence except in the imagination, no foundation in reality and is the product of mental disease. It is contended by the contestants that the evidence in this case tends to prove that the testator was afflicted with insanity in the sense last described, at the time of the execution of his will, and that the disease manifested itself in delusions having special relation to his testamentary capacity. If this be true the case should have been submitted to the jury, and the trial court was right in so holding. If Mr. Seitz’s mind was impaired, the condition was indticed by himself by the excessive use of alcohol during a long period of time. This fact can, of course, have no effect upon the court with respect to the determination of his right under the law to make testamentary distribution of his property. His act stands in no more favorable position before the law than had the same condition been induced by causes independent of his own will. The effect of alcoholic madness in its relation to the enforcement of hoth the civil and criminal law was stated by Sir Matthew Hale in his History of the Pleas of the Crown, and like many other utterances of that most eminent of English jurists it has been justified by the experience of succeeding centuries. He said (p. 32): “Although . the simplex phrenzy occasioned immediately by drunkenness excuse not in criminals, yet if by one or more such practices, an habitual or fixed phrenzy he caused, though this mandess was contracted by the vice and will of the party, yet this habitual and fixed phrenzy thereby caused puts the man into the same condition in relation to crimes, as if the same were contracted involuntarily at first.” It is said in the great work on Medical Jurisprudence already cited (Yol. 1,. sec. 589), “Among the exciting causes of insanity alcohol takes front rank.” Clouston in his Mental Diseases (p. 312) says that from fifteen to twenty per cent of the cases of mental disease may, taking the country through, be put down to alcohol as a cause,, wholly or in part. These authorities tell us that the delusions attending that form of mental disease are usually persecutory or depressive in type. • The subject becomes suspicious, and believes that people are in league against him. His best friends become, in his imagination, his worst enemies. He imagines even that his wife is unfaithful, and under the influence of these delusions is liable to become dangerous. The solution of the problems which must necessarily arise out of association with those so afflicted would seem to rest primarily with the medical profession, or at least with those of its members who have had special opportunity for observation and investigation along-those lines. Were one of our own household so> afflicted, common prudence would dictate that we consult an experienced physician with reference to the elements of safety or danger in the situation, and the court was favored with such evidence in this case. It was not necessary to rely upon strangers who were compelled', to base their opinions upon hypothetical questions founded upon the impressions of those unskilled in the observation of such phenomena, but-two such witnesses were available who Mad had the opportunity to observe the testator for years. One of them was his intimate friend, while the other was his physician, and had been in medical charge of an institution for the insane for many years. They both concurred in stating that during the time of their observation of the testator the impairment of his faculties had been continuous and progressive, and that he was not of sound mind at the time the will was made, nor for a long time before, nor afterwards up to the time of his death. The evidence tended to show that during a number of years before his death, including the time his will was made, he was subject to the very delusions which would naturally tend to disqualify him from judging of his relations to the natural objects of his bounty. He believed that his friends had become his enemies, and were trying “to do him up'” or get his money. Although the will gave his-daughters the bulk of his property it limited them to a life estate and provided that if they should die without heirs of their body it should go to the defendant university, with which he had no connection whatever. These two plaintiffs were his only children, to whom under the statutes of descents and distributions the entire estate would pass upon his death, and they have the right to require that the will shall be established in due form of law before it shall be permitted to operate to take away the unlimited power of disposition which would pertain to the title they would take had he died intestate. We cannot refuse them this privilege on the ground that we think the will a pretty good one and they ought therefore to be satisfied.

We think there was some evidence tending to prove a want of testamentary capacity in Mr. Seitz at the time he executed the will and it necessarily follows that the order of the circuit court granting a new trial should be affirmed and cause remanded for further proceedings in'accordance with that order.

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

All the judges concur.


source: Caselaw Access Project

author: BLAIR, C.

license: Public Domain

text:
    CITY OF LOUISIANA v. W. K. LANG, Appellant.
    Division One,
    June 28, 1913.
    1. JURISDICTION: Constitutional Question: How Preserved. Where there is in the record no reference to either the State or Federal Constitution or to any Federal statute or question whatsoever, the Supreme Court has no jurisdiction upon any of those grounds.
    2. -: -: Refused instructions. Federa* questions must not only be timely raised, but, to confer jurisdiction on the Supreme Court, must be preserved for review. Where the instructions given aré not preserved they are presumed to have covered the case, and refused instructions cannot, in such circumstances, be reviewed, and, consequently, afford no basis for retaining jurisdiction on constitutional or Federal grounds.
    3. -: Political Subdivision of State Not a Party. The city of Louisiana is not a political subdivision of the State within the meaning of section 12, article 6, of the Constitution, giving jurisdiction to the Supreme Court in cases to which a political . subdivision of the State is a party.
    Appeal from Louisiana Court of Common Pleas.— Son. David S. Eby, Judge.
    Transferred to the St. Louis Court of Appeals.

      D. A. Ball for appellant.

      James E. Pew for respondent.
   BLAIR, C.

A jury in the Louisiana Court of Common Pleas assessed a penalty of fifty dollars against defendant for violating’ an ordinance of the city of Louisiana which prohibits itinerant merchants from plying their vocation in that city without license. On the trial there was evidence tending to support the complaint. The evidence conflicted on the question whether defendant received his supplies from Chicago or St. Louis.

This court has no jurisdiction of this case. The demurrer to the complaint and the objection to the reception of any evidence were both ' P11^ upon the simple ground that the complaint “stated no cause of action.” Neither those nor the demurrers to the evidence, offered at the close of the plaintiff’s evidence and at the close of all the evidence, raised any constitutional or Federal question. [Lohmeyer v. Cordage Co., 214 Mo. 685.] There is not in the record any reference, direct or indirect, to either the State or Federal Constitution or any Federal statute or question whatsoever. No claim of any right under any or either of these, so far as the record shows, was set up in the trial court at any time or in any fashion.

The argument here seems to assume ^la^ a question sufficient to confer jurisdiction on this court was involved in the ruling refusing instructions asked as follows:

“The court instructs the jury that if they believe from the evidence in the cause that the defendant, W. K. Lang, selling goods, wares and merchandise such as coffee, teas, etc., as has been given in evidence, and that the same were shipped from Chicago to the defendant and by him sold and distributed, then your verdict should be for the defendant.”
“The court instructs the jury that if you believe from the evidence in the cause that the goods, wares and merchandise, such as coffee, teas, etc., as sold by defendant W. K. Lang, were from a house in Chicago, and that said Chicago house, Jewell Tea & Coffee Company, had a distributing point in St. Louis and Hannibal, one or both, and from there the goods were reshipped to defendant at the distributing point, or shipped from the distributing point to the defendant ■at the city of Louisiana, then your verdict should be for the defendant.”

After showing the ruling on these proffered instructions, the record states that “under the instructions of the court the jury returned” their verdict wherein they assessed defendant’s punishment at a fine of fifty dollars.

The instruction in Canton v. McDaniel, 188 Mo. 207, 213, specifically invoked the protection of the Interstate Commerce Act, and in that respect materially differs from those refused in this case. If, however, It could be conceded that under this decision and others (Shewalter v. Railroad, 152 Mo. 1. c. 548; Live Stock Commission Co. v. Railroad, 157 Mo. 518; Schwyhart v. Barrett, 223 Mo. 1. c. 499; Bank v. Bank, 173 Mo. 1. c. 158; Independence to use v. Knoepker & Nagel, 205 Mo. 1. c. 341, et seq.) the refused instructions might in some circumstances have constituted an invocation of the protection of some constitutional provision or injected an issue as to the validity of a Federal statute, yet in the state of the record the ruling on these instructions is not here for revision. Federal and constitutional questions must not only be timely and properly raised, but, to confer jurisdiction •on this court, they must be preserved for review. In this case the quoted record recital discloses that the trial court submitted the case under instructions, none of which, in form or substance, have been brought here. One of the grounds justifying the refusal of Instructions is that their subject-matter is already covered by instructions given. It is presumed the trial court ruled correctly, and the record must affirmatively show the contrary before that court can be held to have erred. The given instructions not being in the record and not having been excepted to and there being no recital in the record disclosing what they contained or omitted, they are presumed to have covered the case in all its phases, and the refusal of any and all others is justified by that presumption without more. [Long v. Long, 96 Mo. 180; Merrill v. Central Trust Co., 46 Mo. App. 1. c. 244.] The refused instructions could not, in the circumstances, be reviewed by this court, and, consequently, afford no basis for retaining jurisdiction. [Ross v. Grand Pants Co., 241 Mo. 1. c. 299.]

The City of Louisiana is not a subdivision of the State (Smith v. Sedalia, 228 Mo. 505) in the constitutional sehse, and the presence of none of ^le other conditions conferring jurisdiction is suggested by counsel or the record. The cause is transferred to the St. Louis Court of Appeals. Brown, C., concurs.

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

All the judges concur.


text:
    OTTUMWA BRIDGE COMPANY v. BERNARD CORRIGAN and CORRIGAN REALTY COMPANY, Appellants.
    Division One,
    June 28, 1913.
    1. BILL OF EXCEPTIONS: Filed After Expiration of Leave. Section 1, p. 139, Laws 1911, repealing Sec. 2029, B. S. 1909, which, governs the time for filing bills of exceptions, does not create a right to file a bill of exceptions in a case where leave to file had expired before the new section went into effect.
    2. CONTRACTS: Time of Performance: Not of Essence: Pleading. Plaintiffs contracted to furnish and erect the steel for defendants’ large hotel building. The contract provided, that, if there appeared errors or inconsistencies in the specifications, plaintiff should refer the matter to the architect; that in case of lack of clearness he should call for detail drawings; that the owner agreed to have the site prepared by a certain date; that the complete erection of the steel work should be done and finished October 10, 1907, any delays caused by the progress of brick work to be added to that time. Plaintiff sues now for payment of balance on contract price, alleging performance by November 21, 1907. Defendants answer that, without fault on their part, the steel work was not finished until after the date set, and they seek by counterclaim to recover rental which they say they lost by such failure. Plaintiff replied that the delay was due to the acts of the defendants and to delay in brick work, and that the defendants agreed for a valuable consideration to waive all damages for failure to complete the erection by October 10. Held, that time was not of the essence of the contract; that plaintiff’s petition states a cause of action even though it shows performance was not completed until November 21; and that plaintiff’s reply is not a departure.
    Appeal from Jackson Circuit Court. — Hon. W. O. Thomas, Judge.
    Affirmed.

      Yates & Mastin, Atwood & Hill and Reed & Harvey for appellants.
    (1) Where one sues on a written contract, alleging exact and specific performance with its every condition, as here, he may not abandon his cause of action in his reply, nor can he recover on an alleged waiver of the contract provisions, which he says he has kept when such issue is first tendered therein. The plea of waiver is inconsistent with the allegation of performance nor can such allegation in the reply, cure the defect in the petition. It is so held in a case exactly on all-fours with the case at bar. Mohney v. Reed, 40' Mo. App. 99. This case is expressly approved by the Supreme Court in Moss v. Fitch, 212 Mo. 503. “Where plaintiff sues on a written contract to enforce specific performance thereof, he cannot recover on averments in his reply of an alleged estoppel, which constitute a departure.” Hill v. Coal & Mining Co., 119 Mo. 9; Ham v. Railroad, 149 Mo. App. 200. (2) It is conceded that respondent did not keep the terms of the contract sued on. This the nncontradicted evidence shows. Moreover the nncontradicted evidence shows that respondent did not keep the contract as modified by the parol agreement of October 8, 1907. The verdict finds that respondent did not keep the modified or substituted contract; for that damages are allowed to appellant by the verdict in the substantial sum of $3000, thus placing the matter within the pale of demonstration. Recovery may not be had upon contract and for contract price where admittedly the contract has not been kept. The remedy is in quantum meruit. Marsh v. Richards, 29 Mo. 99; Donney v. Burke, 23 Mo. 228; Eyerman v. Cemetery Assn., 61 Mo. 491; Keith v. Ridge, 146 Mo. 97; Dermott v. Jones, 63 U. S. 262; McVoy v. Wheeler, 6 Port. (Ala.) 201; Harrison v. Franklin, 126 Mo. App. 376. This has been the law in Missouri since 1835. Helm v. Wilson, 4 Mo. 41; Raymond v. Fisher, 6 Mo. 36. (3) “The effect of an extension of or waiver of time for performance is merely to substitute a new time for the - old. It does not affect the other provisions of the contract and when the agreement for extension or waiver is silent as to the duration of the extension the law implies that it shall be for a reasonable'time.” 30 Am. & Eng. Ency. Law, p. 1260. And it is only when the agreement is silent as to time that law implies a reasonable time.

      Reed & Reed for respondent.
    (1) At the conference on October 8th the parties merely made provision for subletting the contract for the steel for the top two stories, and in no wise made any new agreement regarding the date for completion of the entire steel structure or the delivery of the remaining steel. The lifting from the contract of the provision 'requiring completion on October 10, 1907, resulted, not by reason of any new agreement to that effect, but solely as a matter of law, which, under the circumstances, thereupon implied that the erection should be completed, not on November 10, 1907, but within a reasonable time after October 8, 1907. Hart v. Carswell Mfg. Co., 116 111. App. 159; Smith v.-Sanitary, etc., of Chicago, 108 111. App. 69; 30 Am. & Eng. Ency. Law (2 Ed.), p. 1259; Cornish v. Sudam, 99 Ala. 621; 2 Woodward (Pa.), 332; Andrews y. Tucker, 127 Ala. 602; Bishop on Contracts (Ed. 1887), sec. 795; Ward v. Harén, 139 Mo. App. 8; Water Co. v. Pierce City, 61 Mo. App. 471. (2) The abrogation of the time provision in the contract, instead of resulting from any express agreement, was effectively accomplished by the conduct of the defendant in continually urging the plaintiff to proceed; maintaining a superintendent over the erection; continuing to make payments on the contract price, and the acceptance of the work when completed. Thereupon the contract provision as to time of performance was eliminated as completely as if it had never been inserted. Construction Co. v. Seymour, 91 H. S. 646; Kraus v. School Trustees, 162 Ind. 278; CrockerWheeler v. Yarick Co., 104 N. Y. App. 568; Eysler v. Parrott, 83 111. 517; Mclntire v. Barnes, 4 Colo. 285; Cannon v. Wildman, 28 Conn. 472; Grant & Co. v. Railroad, 51 Ga. 348; Dunn v. Steubling, 120 N. Y. 232; Grannis v. Deeves, 72 Hun, 171; Powlds v. Evans, 52 Minn. 560; Sinclair v. Talmadge, 35 Barb. 602; Bridge Co. v. Stewart, 134 Mo. App. 618; Burchard v. Alpha Process Co., 45 Pa. Sup. Ct. 254; Deeves & Son v. Manhattan Co., 195 N. Y. 330; Supply Co. v. Goelet, 133 N. Y. Supp. 983; Oil Co. v. McCaw Mfg. Co., 70 S. E. 201; Wall v. Storage Co., 112 Mo. App. 659. (3) The reply did not constitute a departure nor contain any new matter inconsistent with the cause of action set forth in the petition, but merely presented plaintiff’s defense in response to defendant’s counterclaim. Coombs y. Block, 130 Mo. 680; Simpson v. Bantley, 142 Mo. App. 495; Milling Co. v. Allen, 74 Kan. 679; Bliss on Code Pleading (3 Ed.), sec. 396;. 1 Chitty on Pleading (16 Ed.), p. 678; Chemical Co. v. Lackawana Line, 70 Mo. App. 274; Philibert v.. Burch, 4 Mo. App. 470; Loucks v. Davies, 43 Colo. 490; Erickson v. McLellan, 46 Wash. 661; Water Co. v. Pierce City, 61 Mo. App. 471; Heating Co. v. Bis-sell, 41 Mo. App. 426; Ehrlich v. Aetna Co., 103 Mo.. 231; Rhodes v. Land & L. Co., 105 Mo. App. 313; Mc-Lachlin v. Barber, 64 Mo. App. 511; Ricketts v. Hart,. 73 Mo.. App. 647; Booker v. Allen, 158 Mo. 613 -r Manf’g Co. y. Heinz, 120 Mo. App. 465; Bridge Co. y. Stewart, 134 Mo. App. 618; Anderson v. Imkoff, 34 Neb. 335; Baptist Church v. Sigwald, 39 Kan. 387;. St. Paul Co. v. Furn. Co., 23 Okla. 79; Wey v. Bank, 29 Okla. 943; Cement Co. v. Ullman, 140 S. W. (Mo.) 620; Manzki v. Goldenburg, 149 Mo..App. 14; Loftis. y. Pacific Co., 114 Pac. (Utah) 134; Low v. Keens, 133 N. W. (Neb.) 1127; Eddleman v. Lentz, 72 S. E. (N. C.) 1011. (4) This action was properly founded on the contract rather than upon quantum meruit.. Crocker-Wheeler v. Varick Co., 104 N. Y. App. 568; Mclntire v. Barnes, 4 Colo. 285; Grannis v. Deeves, 72 Hun, 171; Reading Hdw. Co. v. Pierce, 113 N. Y. Supp.. 331; Bridge Co. v. St. Louis, 43 Fed. 768; Pratt v. Forge Co., 184 Fed. 289. (5) Time was not made' of the essence of the contract, and by consent of both parties and by the conduct of defendant’s inter alia in requiring the subletting of a part of the work, the' time of performance became merely an obligation to> complete within a reasonáble time. Manufacturing” Co. v. Heinz, 120 Mo. App. 465; Heating Co. v. Bissell, 41 Mo. App. 426; Turner y. Mellier, 59 Mo. 526; Sawyer v. Christian, 40 Mo. App. 295; Springfield Co. y.. Walt, 94 Mo. App. 76; O’Neill v. Webb, 78 Mo. App. 1; Bagwell v. Am. Surety Co., 102 Mo. App. 707; •Crocker-'Wheeler v. Yariek Co., 104 N. Y. App. 568; Dunn v. Steubling, T20 N. Y. 232; Fowlds v. Evans, 52 Minn. 560; Daly v. Carthage, 143 Mo. App. 564; Carroll v. ITassell, 143 S. W. 835; Wall v. Storage Co., 112 Mo. App. 659. (6) The bill of exceptions contained in the record should be stricken out and disregarded by this court, because not filed within the time required by law. Hewitt v. Colo. Springs Co., 5 Colo. 184; Mellinger v. Houston, 68 Tex. 36.
   BROWN, C.

The petition, so far as is necessary to understand the questions presented in this appeal, is as follows:

“That on or about May 11, 1907, the defendant, Bernard Corrigan, acting for himself personally and also as a8’en'*: axL(^ representative of The Corrigan Realty Company, made and entered into a contract with the plaintiff, whereby said Bernard Corrigan, for himself personally and as the agent of said The Corrigan Realty Company employed and engaged the plaintiff, Ottumwa Bridge Company, to furnish and erect for the said Bernard Corrigan and the said Corrigan Realty Company certain steel, iron and other building material, and to perform certain labor in and about the erection and construction of an addition to the Baltimore Hotel, a building situated on Baltimore avenue between Eleventh and Twelfth streets in Kansas City, Missouri, which said contract was in writing, a full and true copy of which is as follows, to-wit:”

Then follows a specification of cast iron bases anu steel construction work entering into an addition to the Hotel Baltimore, Kansas City, Mo., the addition being a hotel structure 75x117 feet, of eleven stories and basement, together with an extension of the eleventh and twelfth stories over the existing building, approximately 42x116 feet. It provides among other things:

“Should the drawings and specifications appear to he mutually contradictory in any part, or should there he apparent errors in either., or in the figures on the drawings, the contractor must not attempt to adjust the same himself, hut must refer the matter to the architect for his adjustment. All figures shown on drawings shall he checked by contractor before ex-* ecuting work, to the end that all work shall be reconciled within itself and to adjoining work and trades.
“Should there be any portion or detail of the work not fully shown on the drawings or shown insufficiently clear for the*proper execution of the work in a thoroughly first class manner, the contractor must call for detail drawings of the same or specific instructions, and such work executed without details or specific instructions and not fully satisfactory to the architect, will be taken down and replaced at the contractor’s expense.”

The time for completion of the work is stated as follows:

“The owner agrees to have the excavation done and concrete beds prepared for the reception of cast Iron plates on or before July 15, 1907, at which dime the cast iron bases will be delivered on the ground.and shall be set by July 25th. The complete erection of the steel work shall be done and. finished October Í0, 1907, and shall progress ás nearly as practicable according to the limiting horizontal lines on column sheet No. 11 relating to top levels of floor construction, Any delays caused by the progress of brick work shall be taken into consideration and an equal time to such delay shall be added to the above date of October 10, 1907.”

The following proposal and acceptance, written -on the specifications, are pleaded as the contract.

“Ottumwa, la., May 11, 1907,
“Mr. Bernard Corrigan,
Kansas City, Mo.
“We hereby propose to deliver and erect the steel and cast iron work entering into the Baltimore Hotel, per drawing therefor prepared by Louis Curtiss, architect, and numbered 1 to 11 (identified with this proposal by our signature) and per the foregoing specifications including all clauses, stipulations and descriptions of labor and material contained therein, and according to the schedule of time noted on sheet 11, for the sum' of sixty-seven dollars per ton of two thousand pounds.
“The above proposition is based upon our statement that ninety per cent of the steel involved is now in stock in our yards and shall enter into the above work.
“Ottumwa Bridge Co.
By John Dittmann.
“Kansas City, Mo., May 11, 1907,
. “I hereby accept the above proposition.
Bernard Corrigan.”
■ The petition then proceeds:
“4th. That in compliance with the terms of said contract the plaintiff undertook the performance of said contract, and did furnish the material and perform the labor and services, and do each and every of the several things required by said contract, and in that behalf did furnish and erect in said addition to> said Baltimore Hotel 665.8895 tons of iron and steel, furnishing, delivering and erecting the same at the dates and in the amounts as follows: ’ ’

. It then sets, out nineteen items aggregating about three hundred and eighty-three and a half tons from July’ 15th to October.8, 1907, inclusive; thirteen items aggregating about two hundred and seventy-three tons from October 12th to November 6th, and the remainder in three small lots — one November 7th and the other two on November 21st, and concludes:

“5th. That the aggregate amount of the said steel and iron at sixty-seven dollars per ton, as per contract, was the sum of $44,614.59.
“6th. That the defendants, on their part, and as payment to apply on said contract, paid to the plaintiff the sum of $31,016.13.
“7th. That the remainder of said contract, to-wit, the sum of $13,598.46, became due and owing to the plaintiff about the first day of December, 1907, and the plaintiff then and at numerous, times since said date has requested the defendants to pay said sum, but the said defendants had failed, neglected and refused, and still fail and refuse to pay said remainder of said account or any part thereof, and there now remains due to the plaintiff said sum of $13,598.46 with interest thereon at the rate of six per cent per annum from December 1, 1907.
“Wherefore plaintiff prays judgment against said Bernard Corrigan and the Corrigan Realty Company for the sum of $13,598.46 with interest at six per cent per annum from December 1, 1907, and the cost of this action.”

The defendants interposed a general demurrer to the petition, which was overruled by the court. It then filed its answer, which, so far as it relates to questions here in this appeal, is as follows:

“III. That on or about the 11th day of May, 1907, the defendant, Bernard Corrigan, acting for himself and also as agent of the Corrigan Realty Company, made and entered into the contract with the plaintiff which is set out in haec verba in the third clause of the plaintiff’s petition, and defendants further aver that the clause and agreement therein contained to' the effect that the plaintiff had on hand at the date of- the execution of said contract, to-wit, May 11, 1907, ninety per cent of the steel to he furnished in accordance with said contract, in the plaintiff’s yards and ready for delivery and the further agreement and covenant so contained in said written contract whereby plaintiff bound itself to complete the erection of all steel work in a finished condition by October 10, 1907, were inducements to and conditions precedent for the making of said contract with plaintiff by defendants.
“IV. Defendants expressly deny that the plaintiff furnished the material and performed the labor and services required by the terms and conditions of the contract sued on and set out in the plaintiff’s petition, and deny that the plaintiff did each and every one of the several things required by said contract, deny that the plaintiff ever at any time erected or furnished the quantity or amount of steel specified in the plaintiff’s petition, but to the contrary aver that the quantity of steel furnished defendants and erected in the building mentioned in the petition was 643.69 tons,- amounting in price, at the rate mentioned in said contract, to-wit: sixty-seven dollars per ton, to the sum of $43,127.23, and defendants further deny that said steel was erected at the dates or by the times set forth in the fourth paragraph of the plaintiff’s petition as is therein alleged, but to the contrary aver that during all of the months mentioned in said paragraph of the plaintiff’s petition plaintiff was in default in the timely erection of the steel work required to be erected by plaintiff under the terms and conditions of the contract referred to, and defendants further aver that the plaintiff failed to build and did not complete the erection of said steel work, which plaintiff agreed should be done and finished by the 10th day of October, 1907, until the 28th day of January, 1908. Defendants further aver that none of the delays of the plaintiff in the erection and completion of said steel work was caused or occasioned by any act or omission or neglect of the defendants.”'
“Y. Defendants further aver that they have paid to the plaintiff from time to time on the said contract the total sum of $31,445.63, that the total sum due plaintiff, had plaintiff kept and performed the terms and conditions of the contract so entered into by and between plaintiff and defendants as aforesaid, which defendants expressly deny, would be the sum of $11,681.60 and not .the sum of $13,598.46 as averred in the plaintiff’s petition, but defendants say that the plaintiff ought not to have and recover a judgment against defendants in any sum whatever for that the failure-of. the plaintiff to keep and perform the terms and conditions of said written contract in furnishing and erecting said steel work by the date therein mentioned, to-wit, October 10, 1907, resulted to the great .damage of the defendants in this — that the building of which the steel work mentioned in said contract was a constituent part, was being erected by the defendants for the use of the Baltimore Hotel Company, a corporation, and had theretofore been rented by these defendants to said company at and for the price and sum as rental of five thousand dollars per month, as plaintiff well knew; that by reason of the failure of the plaintiff to keep the terms and conditions of said contract and to furnish, erect and complete said steel work by the time limit mentioned in said contract, to-wit, October 10, 1907, and by reason of the failure of plaintiff to furnish, erect and complete the same until January 28, 1908, the defendants lost as rental on said building and were damaged by reason thereof, the total sum of $17,832.00, for which sum the defendants say they are entitled to a judgment against the plaintiff with six per cent interest thereon from the 28th day of January, 1908, for which defendants pray, together with their costs in this behalf expended.
“Further answering defendants deny each and every- allegation in the plaintiff’s petition contained not hereinbefore admitted, and having fully answered ask to go hence with their costs.
“Count II. Come now the defendants and by way of counterclaim to the plaintiff’s cause of action set forth in their petition, and as and for the defendant’s cause of action against the plaintiff, defendants aver: . . .
“III. That on or about the 11th day of May, 1907, the defendant, Bernard Corrigan, acting for himself, and also as agent of the Corrigan Realty Company; made and entered into a certain written contract with the plaintiff whereby said Bernard Corrigan, for himself and as the agent of the said Corrigan Realty Company, employed and engaged the plaintiff to furnish and erect for the said Bernard Corrigan and the said Corrigan Realty Company certain steel and other building material and perform certain labor in and about the erection of the same and in the construction of an addition to the Baltimore Hotel, a building situated on Baltimore avenue between Eleventh and Twelfth streets in Kansas City, Missouri, which said contract was in writing, a full and exact copy of which is as follows:”

The answer then sets out in haec verba the contract as found in plaintiff’s petition heretofore. After setting out the contract, the remaining portion of said answer follows:

“Defendants say that at the time said written contract was entered into by and between defendants and plaintiff as aforesaid, the defendants had already rented the said addition to said Baltimore Hotel to the Baltimore Hotel Company, a corporation, as plaintiff well knew, at and for the reasonable rental value thereof which was the sum of five thousand dollars per month, and that defendants were induced to enter into said contract, as plaintiff well knew, because of the conditions made a part thereof to the effect that all of the materials to be furnished and labor to be performed in the matter of the erection and completion of the steel work mentioned in said contract, were to be furnished and said steel work erected in a finished condition and completed on or before October 10,1907'; and also by reason of the further agreement and guaranty so contained in said contract to the effect that ninety per cent of the steel to be furnished and erected under the requirements of said contract, was on hand and in the yards of the plaintiff ready for shipment and erection, and defendants aver that the plaintiff wholly failed to keep and perform the terms and conditions of the said contract herein-before set out, in this, that steel to be furnished under said contract, was not furnished, and the steel work to be erected and completed under said contract was not erected and completed until the 28th day of January, 1908; that the failure of the plaintiff to keep and perform the said contract in the particulars set forth was not occasioned by any fault, delay or neglect of these defendants to do any of the things required to be done by them by the terms and conditions of said contract; that by reason of the failure of the plaintiff in the premises to furnish and complete the erection of said steel work according to the terms and conditions of the said contract, the defendants lost the rent of said addition to said Baltimore Hotel for a period of three months and seventeen days and were actually damaged in the sum of $17,882, for which sum, together with interest at six per cent from the 28th «day of January, 1908, defendants pray judgment against the plaintiff, and for costs.”

Plaintiff replied as follows:

“Comes now the plaintiff, and for reply to the amended answer of the defendant denies each and every allegation in said amended answer contained, except those averments admitted in the petition or in the following reply.
“Plaintiff for further reply to said amended answer avers that if there was any delay in the completion of the plaintiff’s contract set forth in the petition, the same was due to and caused solely by the interference, acts and conduct of the defendants and their agents, representatives and subcontractors, and not on account of the default of failure of this plaintiff to promptly comply with its contract.
“Plaintiff for further reply alleges that after October 10, 1907, and while a part of said steel work was yet incomplete, the defendants, through said Bernard Corrigan, expressly agreed that any and all damages for and on account of the failure to complete said erection on October 10, 1907, were to be waived, in consideration of the agreement to expedite said work by going into the market at that time and purchasing additional material needed to complete said work at that time, at a much higher price than said steel material would cost plaintiff if furnished through its own plant.
“Plaintiff avers that in compliance with its said supplemental agreement it did purchase said additional steel at once, and at a much' enhanced price, and did complete said contract therewith as promised, and with'the express understanding that the defendants waived all claims on account of delay.
“That accordingly defendants after October 10, 1907, and at all times up to the date of completion of said contract, acquiesced in the completion thereof by plaintiff,' although after the date when by first agreement it should have been completed, and repeatedly requested plaintiff to complete and speed the completion thereof, and' paid to plaintiff many and large sums of money to apply on the erection and- cost after the 10th.day of October, 1907, and at' divers dates.
“Plaintiff further avers that the delay in completion of said contract was caused by the acts of the defendants and their agents and representatives in altering and changing the plans and specification for said steel work, and in the furnishing of drawings and other things to be furnished and performed by defendants or their agents, whereby plaintiff was prevented from proceeding with said work.
“Plaintiff further avers that at least one-half of the delay in the completion of said work was due to the delay in the progress of the brick work as mentioned and provided for in the “time” clause of said contract, and that said additional time was accordingly allowed to plaintiff.
“Plaintiff expressly denies that it had any knowledge or notice that said hotel was rented, or the rental value thereof, or was advised as to when the same was intended to be occupied, or that the structure to be erected by it had any rental value.
“Wherefore, plaintiff having fully replied to defendant’s amended answer renews the prayer of its petition. ’ ’

The cause was tried on these pleadings, and the jury returned the following verdict:

“Kansas City, Missouri, May 14, 1909. We, the jury, find the issues in favor of the plaintiff upon his petition and assess his damages at the sum of thirteen thousand, five hundred and ninety-eight dollars and forty-six cents ($13,598.46) plus interest at the rate of six per cent per annum from the date of January 15, 1908, to May 14, 1909, amounting to ten hundred and eighty-seven dollars and eighty-seven cents ($1,-■087.87) and further find the is.sues in favor of the defendants on his counterclaim and assess his damages' thereon at the sum of three thousand dollars ($3,-000).”

Prom the judgment entered upon and in accords #nce with this verdict this appeal was taken after the filing by defendants and overruling of a motion in arrest of judgment made on the following grounds::

“1. Because the plaintiff was not entitled on the-pleadings to recover.
"2. Because the petition does not state facts sufficient to constitute a cause of action against these defendants.
“3. Because the verdict of the jury is not responsive to the issues tendered by the pleadings herein and is insufficient upon which to predicate- a judgment.”

The defendants, by order of the court, were given until the 8th day of October, 1910, to file bill of exceptions. On June 24, 1911, and without further leave or stipulation, the trial judge signed and the defendants filed a bill of exceptions taken during the trial and to the overruling of their motion for a new trial.

I. The first question- that' calls for our attention in this case is whether we have before us a bill of exceptions that we are at liberty to consider. The cause was tried and the verdict returned on May-14, 1909, during the April term of the Jackson County Circuit Court. During the October term, 1909,-on the 11th day of December, the motions for a new trial and in arrest of judgment were overruled and this appeal granted, and the appellants given leave to file their exceptions on or before the 9th day of April, 1910. On the 23rd day of March, 1910, while the former leave was in force the court for good cause ex-tended the time for filing the bill of exceptions until' on or before the 8th day of October, 1910. Nothing further was done until the 24th day of June, 1911, when the bill of exceptions incorporated in this record was signed and sealed by the judge of the trial court and duly filed. In the meantime, that is to say, between the expiration of the leave last given by the court to file the bill of exceptions and the time of its actual signing and filing, the act of the Legislature approved March 13, 1911, went into effect by virtue of its emergency clause, and the question is thus squarely presented as to whether this act applies to those cases in which the right to file a bill of exceptions had expired before its passage and approval.

This precise question was before this court at the October term of the present year and it was determined upon full consideration that the Act of 1911 was not intended to have and did .not have the effect to create the right to file a bill of exceptions in those cases where there was no such right in existence at the time of its taking effect. In other words it only operated to extend a right in existence at that time. [Craig v. Railroad, 248 Mo. 270.] We do not think that any beneficial purpose would be served by a reconsideration of the question at this time:

While the act is remedial in its nature, the construction contended for by appellants would inure chiefly if not wholly to the benefit of those who, either deliberately or through negligence, .had surrendered the right to have a review of the matters of exception involved, and it does not seem that they have a higher equity than those who, for the same reasons, have failed to take their appeal within the time permitted by law. We still see no reason why, by construction, they should be forced under the wings of the act by permitting it to retroact upon'a status already, existing by enlarging the scope and effect of the appeal.

There being no bill of exceptions in the case the Act of 1911 by its terms requires the affirmance of the judgment below, “if error do not appear in the record.” It thus becomes our duty to examine the record proper to ascertain whether it is sufficient to support the judgment.

II. The appellants contend that the petition does not state a cause of action because, although it pleads generally the performance by plaintiff of all the conditions of the contract, yet it shows upon face ^at the work was not finished within the time required by its terms. ■ It ^rue the contract pleaded provides that the work should be done and finished October 10, 1907, while the petition states that it was completed on the twenty-first day of November, 1907, yet it expressly provides that “any delays caused by the progress of brick work shall be taken into consideration, and an equal time to such delay shall be added to the above date of October. 10, 1907. ’ ’ Thus the time of completion expressed in the contract was really October 10, 1907, or as soon thereafter as the progress of the brick work would permit according to the rule of computation above stated. The defendants demurred generally to the petition, and upon the overruling of their demurrer, answered over to the effect that at the time the contract was executed the building had been rented to the Baltimore Hotel Company for a reasonable rental; that a reasonable rental for the addition was $5000' per month; that the defendants were induced to enter into the contract, as plaintiff knew, because of the condition that the steel work was to be completed October 10, 1907, and a guaranty to the effect that ninety per cent of the steel was on'hand in plaintiff’s yard ready for shipment and erection, that the steel work was not completed until January 28, 1908, and that by reason of such “failure to complete the work October 10, 1907, defendants were damaged in the sum of $17,882 for which, with interest, they ask judgment.

The plaintiff replied to this (1) by general denial; (2) if there was any delay it was caused solely by the interference, acts and conduct of defendants and not the default or failure of plaintiff; (3) that after October 10, 1907, the defendants agreed to waive all damages for the failure to complete the erection on October 10, 1907, for a valuable consideration stated; (4) that after October 10, 1907, the defendants repeatedly requested the plaintiff to complete and speed the completion of the work, and paid him many and large sums of money to apply on the contract; (5) that the delay was causéd by defendants in changing the plans and specifications for the steel work and in furnishing the drawings and other things to be furnished and performed by them by which plaintiff was prevented from proceeding with the work and that at least half of such delay was due to the progress of brick work for which additional time was allowed.'

Defendants insist with great earnestness and learuing that this reply is a departure from the original cause of action stated in the petition, in as much as it abandons the contract sued on, and sets up a new contract so far as the time of completion is concerned. To permit this judgment to stand, they say, would be virtually to substitute the reply for the petition, which would be an entire subversion of the order of pleading required by the Code. They also say: “Recovery may not be had upon contract and for contract pricé where it is admitted the contract has not been kept. The remedy is in quantum meruit.” In view of this contention the sufficiency of the petition standing alone becomes merged in the general question of the sufficiency of the pleadings as a whole to sustain the judgment and we will so consider it.

Contracts consist of two phases which must be blended in one composite structure to be understood. These are the language used and the thing to which it is applied. By this contract the plaintiff undertook to furnish all the material, consisting of steel in different shapes which were mentioned as beams, channels, angles, plates and rivets, out of which are to be produced the girders, columns, lintels, anchors, plates and other members of an immense hotel structure twelve stories in height, covering’ an area 75x117 feet. The two upper stories, extending over an adjoining building, add 42x116 feet to its size. This, according to the record, involved the use of nearly 666 tons of steel, which must be fabricated into finished members, at the plaintiff’s shop in Ottumwa, Iowa, or other manufacturing establishments where the facilities existed, and from there delivered to the ground where the building was being erected as it was needed or could find storage, and erected so as to progress as nearly as practicable according to horizontal lines relating to top levels of floor construction. All these members were to be fabricated and erected as shown on eleven sheets of detail drawings which accompanied the contract. All these drawings of the architect were required to be examined and figures checked by the contractor, so as to be reconciled with all the other members of steel construction, as well as with the adjoining work of all other trades engaged in the construction of the adjoining members of the building. If any discrepancy or insufficiency of detail should be found in these respects the plaintiff was required to stop his work and call for further detail drawings or specific instructions from the architect representing the owner.

It will be seen that the nature of the work required masons and bricklayers to lay the foundations and prepare the walls for the steel structures at every one of the eleven stages described in the contract, and that the plaintiff must reconcile his construction to the conditions so produced, and also to the .conditions indicated upon the plans or hy the work of other trades engaged upon the building; and in all cases must await not only their progress, but the pleasure and convenience of the architect in correcting and reconciling the discrepancies which might exist either in the plans, or in the work of others.

AYe have carefully noted the above features of the contract because of their relation to the first question which naturally presents itself upon the sufficiency of this record: that is to say, whether the time limit of October 10th is an independent agreement, simply entitling the owner to such damages as he might suffer from noncompliance with the contract in that respect, or whether it is, to 'use the common language of the books, of the essence of the contract; that is to say, a condition precedent without the performance* of which no recovery can he had upon it. The point is well presented in this case, for there is no suggestion that the plaintiff violated or failed in the performance of the contract in any respect except in the matter of time. The work was completed, so far ap appears or is claimed, in exact accordance with its ‘terms and was accepted by the defendants.- To ,bp sure, it is suggested in the answer that there was,'a guaranty to the effect that ninety per cent of the stee‘1 to be furnished and erected under the requiremnts of the contract was on hand and in the yards of the •plaintiff ready for shipment and erection. It is. sufficient to say of this that' there is no such guaranty or representation in the contract. The statement is that ninety per cent of the steel involved was, at the date of the execution of the proposition, in stock in plaintiff’s yard and would enter into the work. It was impossible that it should have meant that the material was fabricated into members of the. structure ready to erect, because the fabrication could only be done from drawings made from the plan's, and as the combined work developed. ‘ --vi

. We know of no reason why it is not entirely competent for the parties to agree upon the effect of nom compliance with any stipulation of tkeir contract. If in the exercise of this right they agree that time shall he treated as an essential' element of performance, there is no reason why the courts should not enforce their'clearly expressed intention to that effect. It is otherwise, however, where the contract shows that it was the intention of the parties that time should not be considered of its essence. Sometimes, in the absence of any direct expression upon that subject, the intention of the parties will be presumed from, the 'nature of the contract itself. Thus time will be presumed to be of the essence of the contract when it was known by both parties at the time it was entered into that without a strict performance in that respect it would not accomplish its ultimate object. On the 'other hand in case of building contracts which provide that one of the parties shall furnish valuable material and labor in the construction of a house on the property of another which is completed in all respects according to contract and accepted and used by the owner as an improvement designed by himself for the benefit of his own premises, it would be rank injustice to permit him to escape payment because it •happened to be completed a few days later than the contract requires; and in such cases, unless there is •a plainly expressed intention to the contrary, time will not be considered of its essence but will be presumed to have been entered as an independent agreement, on account of which compensation in damages will put the owner in a position as favorable as would strict performance with respect to time. [Beck & Pauli Lithographing Co. v. Milling & Elevator Co., 52 Fed. 700.] In the case citéd-Judge Sanborn, for the " Circuit Court of .Appeals of the Eighth Circuit, said r

•. ' “It is a.general principle governing the construction of contracts that .stipulations -as. to the time off their performance are not necessarily of their- essence, unless it clearly appears in the given case from the express stipulations of the contract or the nature of its subject-matter that the parties intended performance within the time fixed in the contract to be a condition precedent to its enforcement, and, where the intention of the parties does not so appear, performance shortly after the time' limited on the part of either party will not justify a refusal to perform by the party aggrieved, but his only remedy will be an action or counterclaim for the damages he has sustained from the breach of the stipulation. In the application of this principle to the cases as they have arisen, in. the promulgation of the rules naturally deduced from it, and in the assignment of the various cases to the respective classes in which the stipulation as to time of performance is, or is not, deemed of the essence of the contract, the controlling consideration has been, and ought to be, to so decide and classify the cases that unjust penalties may not be inflected, nor unreasonable damages recovered.”

In Pratt v. Forge Co., 184 Fed. 287, the same question was before the Circuit Court of Appeals of the Second Circuit. In that case a contract for installing an extensive heating plant had, with the acquiescence of the defendant, been extended beyond the stipulated date until a few hundred dollars and a week or two would have completed it, when it was repudiated by the defendant. It was contended that the action should not have been brought upon the contract but upon a quantum meruit. In answer to this contention the court said:

“The defendant has the plant and has been using it since it was installed; it also has the money it agreed to pay for the plant. The plaintiff has nothing.
“It may as well be conceded at the outset that, in such circumstances, the court is ■ not inclined to strain unduly the rules of evidence or of pleading to continue a situation so inequitable.
“The principal contention of the defendant is based upon an alleged defect in pleading. It is argued that plaintiff has mistaken its remedy and that instead of suing upon the contract, the action should have been upon a. quantum meruit. The authority chiefly relied upon is Dermott v. Jones, 23 How. 220, 16 L. Ed. 442, which arose in 1859 in the District of Columbia and was governed by the rules of common law pleading. The case is a striking illustration of how a simple cause of action may be stifled under the old system of pleading.”

In St. Louis Steam-Heating & Ventilating Co. v. Bissell, 41 Mo. App. 426, the same question was the principal one involved and was thus stated in a syllabus :

“The right of recovery for work under a written -contract will not be construed to be conditional upon -compliance with a stipulation for the completion of -the work by a fixed time, unless there is an express .agreement- to that effect, or unless from a fair construction of the language employed, the nature of the .contract and the attendant circumstances, it is apparent that the parties so intended.”

The court said: “Time is not usually of the es-senee of any contract, though it may be made so, in •any undertaking, by express agreement. If the parities do not so expressly stipulate, the courts will not ■attach such a condition, unless, upon a fair construction of the language employed, and from the nature -of the contract and the circumstances under which it was made, it is apparent that the parties so intended. [Russell v. Ins. Co., 55 Mo. 585; Higgin v. Railroad, (60 N. Y. 557; Bishop on Contracts, sec. 1347.]”

After quoting from Turner v. Mellier, 59 Mo. 526, the court proceeded to state its conclusion as follows:

“If the heating apparatus in defendant’s building was designed for a particular occasion or temporary purpose, and was of no use afterwards, then a failure by the plaintiff to complete it in time for such special use would go to the whole consideration, and the plaintiff would be debarred from its action to recover for the work under the contract. But the very nature of the work destroys the idea that the apparatus was designated by the defendant’s testator for a temporary purpose or use. It was intended to be used not for a season, but continually. This necessarily disposes of the question adversely to the defendants. ’ ’

This contract shows no intention on the part of either party to make the date given for the completion of the work of its essence, in the sense that an action may not be brought upon it for the recovery of the contract price upon completion and acceptance at a later date; and the law will not presume such an intention unless there is something in the nature of the work that makes the completion at that time an element in its permanent value, or the- date serves a temporary purpose that is an important inducement to the undertaking. This contract, on the contrary, expressly provides that the given date may be eliminated, and a new and indeterminate one substituted, depending on events within the control of the owner and his agencies, but .impossible to determine otherwise than from conditions as they develop in the course of the work of construction. The work of the plaintiff is also subordinate at every step, not only to the progress of the other trades but also to the convenience of the architect who is made the owner’s representative. And finally the defendants have elected to treat the time stipulation as an independent one, and seek compensation, not on the theory of an irreparable or indeterminate injury, but solely as full rental for a completed building from tbe day fixed for. completion.

In those cases in which time is of the essence of the contract either by reason of legal presumptions arising from its nature and general terms, or by being made so by express stipulation, the failure to perform within the time stated may be waived like any other breach (Estel v. Railroad, 56 Mo. 282; Fowlds v. Evans, 52 Minn. 551; Dunn v. Steubing, 120 N. Y. 232) and under our system of pleading, whenever the answer pleads the breach affirmatively, such waiver may be — and should be — pleaded in the reply. [Ehrlich v. Insurance Co., 103 Mo. 231; Pierce City Water Co. v. Pierce City, 61 Mo. App. 471; Coombs v. Block, 130 Mo. 668; Estel v. Railroad, 56 Mo. 282.] In this case the time of completion not being of the essence of the. contract, it was sufficient to show, under the general allegation of performance, that all its other stipulations were fully performed, and the work completed and accepted. But while it was unnecessary to a recovery upon the contract that the work- should have been completed upon the day named the defendants were entitled to damages for a breach of that provision and presented their counterclaim to recover them in this suit. This presented for the first time the issue of a breach of the time provision of the contract and the plaintiff met it, as it had the right to do, by an attempt to justify its course in the reply.

We have been favored with a most interesting and instructive argument upon the questions of plead-ing which would arise out of the waiver of strict performance of the time stipulation, provided the doctrine were applicable to this ease. We have seen however, that the broken stipulation is not of the essence of the contract, and therefore not a condition to the maintenance of the action on it, so that there has been nothing, to. waive. The defendant,-in his counterclaim for damages, lias followed the well beaten path blazed by the law under onr own code as well as similar ones in other jurisdictions. The verdict of the jury is responsive to the issues so made, and sufficient to support the judgment. Were we to accept the invitation of the defendants, and examine once more the question of the proper time and manner of pleading the waiver of conditions precedent to a recovery in actions upon contracts of this character our opinion would add nothing to the weight of the authorities already incidentally cited in, this opinion which refer to that subject. The judgment of the circuit court is affirmed.

Blair, G., concurs.

PEE CUEIAM. — The foregoing opinion of Brown, C., is adopted as the opinion of the court.

All of the judges concur.