author: MOZLE'Y, C.

text:
    THE STATE v. JOSEPH S. CHICK, JR., Appellant.
    Division Two,
    April 9, 1920.
    1. EVIDENCE: Objections to Introduction: Insufficient Indictment. Verbal objections to the introduction of testimony, on th'e ground that the indictment fails to charge an offense against defendant, and that such testimony constitutes a variance from the charge made in the indictment, avail nothing, nor do motions to strike out such testimony .accomplish anything.
    2. INDICTMENT: Sufficiency: Ealse Pretense. The indictment set out in this ease, whereby defendant is charged with selling a note, which he falsely represented was secured by a first lien on real estate, whereas the note actually so secured had previously been sold by him to another, is drawn under Section 4565, Revised Statutes 1909, and states every constituent fact necessary to be stated in order to charge the offense of designedly, by color of a false writing, obtaining the money of another, with intent to cheat and defraud such other.
    3. VARIANCE. Where the trial court ruled that there was no variance between the indictment and proof, and a review of the while evidence on appeal leads to the same conclusion, it will not be ruled that there was any such variance.
    4. INSTRUCTION: Statements by Defendant: Presumption. Where defendant, charged with a felony, did not testify in his own behalf, an instruction telling the jury that “statements (if any) made by defendant against himself the law presumes to be true, because said against himself, and that what he said for himself (if anything) the jury are not bound to believe, but may believe or disbelieve such statements as they are shown to be true or false by the evidence in the case,” is not erroneous.

      5. -: Other Transactions: Intent and Motive. An instruction telling the jury that “the evidence introduced as to other transactions is submitted to your consideration for the sole purpose of shedding light (if they have that effect) upon ,the intent and motive of the defendant set out in the indictment, for which he is now on trial, and for no other purpose,” and then proceeding to properly define intent and motive, was not erroneous, under the facts of this case.
    6. -: False Pretense: Check: Same as Money. An instruction, in the trial of a defendant charged with obtaining the money of another by false pretense, which tells the jury that, if such other person gave and delivered to defendant a check, which he after-wards cashed and received therefor currency, or by charging the same against the account of such other person, then the legal effect of the delivery of said check to defendant was the delivery to him of money, is not erroneous. The means employed being merely the vehicle by which defendant obtained the money, the receipt of the check and the conversion of it to defendant’s use were parts of the res gestae in obtaining the money.
    7. -: -■: Means of Deception: First Mortgage: Duplicate Note. Where the defendant sold a note for $1600, secured by a deed of trust on real estate, which was recorded, and, under the pretense of collecting interest, paying taxes, etc., received back the deed of trust, and later sold a duplicate of said note to the prosecutrix, representing that it was the note secured by the mortgage, the delivery to her at the same time of said deed of trust did not give h'er a first lien on the property, but the first lien belonged to the prior purchaser; and the court did not err in so instructing.
    8. -: All Law of Case: Refusal of Defendant’s. It is the duty of the court to give written instructions upon all questions of law arising in the case which are necessary for the jury’s information in arriving at their verdict, whether or not a request for instructions on all the law of the case is made by defendant; but where the instructions given for the State cover every feature of the case necessary for the jury’s information, it is not error to refuse instructions asked by defendant which cover substantially the same ground.
    9. WITNESS: Crying: Sympathy of Jury: Admonition. The oral admonition of the court to the jury, requested by counsel for defendant, not to allow themselves to be influenced by their sympathy for a woman, a witness for the State, who upon being subjected to a rigid cross-examination by defendant’s counsel gave way to her emotions and cried in the presence of the jury and had to be led away until she could compose herself, was full and fair in this case, and no reversible error can be based upon the incident.

      Appeal from Jackson Circuit Court. — -Hon. Alonzo D. ‘Burns, Judge.
    Aefikm:ej>.

      Frank P. Walsh, Henry L. Jost, Henry 8. Conrad, B. B. Brewster, M, E. Cagey, M. M. Bogie and James P. Aylward for appellant.
    (1) The indictment fails to allege that defendant either sold, assigned or delivered the note to Miss Kennedy or that Miss Kennedy bought it and parted with her money for it, relying on the false or fraudulent representations of defendant. It is, therefore, fatally' defective and will not' support a conviction. State v. Bonnell, 46 Mo. 307; State v. Saunders, 6131 Mo. 484; State v. Clay, 100 Mo. 580; State v. Hathaway, 106 Mo. 236; State v. Terry, 100 Mo. 501; State v. Stowe, 132 Mo. 199; State v. Barber, 1136 Mo. 443 ; State v. Phelan, 159 Mo. 129; State v. Kelly, 170 Mo. 151; State v. Hubbard, 170 Mo. 354; State v. Meysenburg,, 171 Mo. 50. Because of the defect in said indictment, any evidence tending to prove a saje, transfer, assignment or delivery of said note was inadmissible. (2) There was a failure of proof or a fatal variance between the proof and the allegations of the indictment, the charge in the indictment being that defendant received $1,600 in lawful money of the United State's, when the evidence showed he received a check for $2,550, drawn on the Missouri Savings Bank of Kansas City Missouri. State v. Munroe, 273 Mo. 341; State v. Bouslog, 266, Mo. 73; State v. Mispagel, 207 Mo. 557; State v. Castle-ton, 255 Mó. 201; State v. Rosefelt, 184 S. Wl 904; State v. Salmon, 216 Mo. 251; State v. Shapiro, 216 Mo. 359; State v. Plant, 209'Mo. 307. (3) There was another material and prejudicial variance between the allegations in the indictment and the proof offered in support thereof, in that the indictment set forth a certain mortgage-bond' note and deed of trust, and the proof showed a number of checks, promissory notes, deeds of trust, interest-coupon notes, documents, with printed conditions thereon, which were not set forth and averred in said indictment and of which this defendant had no notice until the trial of this cause, when the same were introduced in evidence by the State over the objections and exceptions of the defendant. Authorities above. (4) If the representations alleged to have been made by the defendant were representations as to the law, or conclusions of law, the same cannot be made the basis of a prosecution for obtaining money, by false pretenses, and on the other hand, if such representations were representations of fact, which were shown by the record to be true, there can be no con-, viction. State v. Cameron, 117 Mo. 648; State v. Bar-bee, 136 Mo. 445; State v. Lawrence, 178 Mo. 350; State V. Anderson, 186 Mo. 25; State v. Powell, 266 Mo. 108; State v. Jamison, 268 Mo. 195. (5) Instruction No. 2' given by the court on behalf of the State is erroneous. State v. Kennedy, 177 Mo. 119; State v. Boatright, 182 Mo. 49; State v. Steele, 226 Mo. 593; Stid v. Mo. Pac. R|y., 21316 Mo. 398. (¡6) Instruction No. 7 given on behalf of the State is erroneous. State v. Mispagel, 207 Mo. 557; State v. Castleton, 225 Mo. 210; State v. Small, 272 Mo. 507. (7) The unwarranted remarks, statements, comments and references of the prosecuting; attorneys, officially and specially employed, concerning the personal appearance of defendant, his failure to testify, and making him an object of personal abuse and ridicule, made in the presence of the jury, were highly prejudicial to the substantial rights of the defendant and were calculated to and did deprive this defendant of a fair and impartial trial, necessitating a reversal of this cause. State v. Graves, 95 Mo. 510 ; State v. Jackson, 95 Mo. 653; State v. Young, 95 Mo. 365'; State v. Moxley, 102 Mo. 374; State v. Ullrich, 110 Mo. 366'. (8)~ The improper conduct and comments of the court in expressly ápproving the prejudicial remarks and statements of the prosecuting attorney in the presence of the jury were' highly prejudicial, calculated to and did deprive the defendant of his right to a fair and impartial trial. "Wright v. Richmond, 21 Mo. App*. 76; State v. Kring, 64 Mo. 591; Rose v. Kansas City, 125 Mo. 235; Wheeler v. Wallace, 53 Mich. 366; State v. Dozier, 177 S. W. 359. (9) The court committed error in refusing to sustain defendant’s motion to dicharge the jury at the time the witness, Mrs. E. L. Massie began to sob and cry violently and aloud, without any apparent reason, in the presence of the jury. ,

      Fra/nk W. McAllister, Attorney-General, and Henry B. Hunt, Assistant Attorney-General, for respondent; Isaac B. Kimbrell of counsel.
    (1) The indictment is sufficient. Secs. 4565, 4765, R. S. 1909 ; Laws 1913, p. 222; Laws 1911, p. 194; State v. Young, 266 Mo. 730; State v. Foley, 247 Mo. 628'; State v. Loesch, 180 S. W: 878. (a) The indictment alleges the assignment of the note. State v. Bonnell, 46 Mo. 3971; State v. Saunders, 63 Mo. 484; State v. Clay, 100 Mo. 583; State v. Hathaway, 106 Mo. 236; State v. Terry, 109 Mo. 501; State v. Stowe, 132 Mo. 199. (b) Therefore, the evidence tending to prove a sale, assignment and delivery of said note was relevant and admissible. (2) There was no variance between the allegations of the indictment and the proof. The allegation that appellant received money, was fully met by proof that he received a check; which he thereafter cashed. He said he got the money. State v. Terry, 109 Mo. 622; State v. Foley, 247 Mo.' 6331; State v. Palmer, 40 Kan. 477; Lewis v. Com., 91 S. E. (Ya.) 174; State v. Gibson, 132 Iowa, 56; State v. Germain, 103 Pac. (Ore.) 523; People v. Leavens, 106 Pac. (Cal.) 1106; State v. Jackson, 69 S. E. (S.. C.) 885; State v. Daniel, 83 S. C. 313; State v. Dimick, 107 N. Y. 32!; People v. Lammert’s, 164 N. Y. 144. (3) The giving in evidence of the deeds of trust, notes and checks other than the instruments set forth in the indictment, were relevant on the question of intent, and to prove the very crime charged. It was not necessary for the pleader to set forth the evidence in the indictment. State v. Hyde, 284 Mo. 226; State v. Bailey, 190 Mo. 280’; State v. Myers, 82‘ Mo. 562; State v. Bayne, 88 Mo. 609; State v. "Wilson, 143' Mo. ’3145; State v. Rosenberg, 162 Mo. 3-71; State v. Katz, 266 Mo. 502; State v. Patterson, 271 Mo. 109; State v. Hill, 273 Mo. 387. (a) The representations made by appellant were representations! as to past events and existing facts that were shown to be false; and were not representations as to the law; nor were the representations made as to facts which were shown to be true. State v. Nord, 230 Mo. 660'; State v. Krouse, 171 Mo. App-. 429; State v. Evers, 49 Mo. 545;; State v. Yorback, 66 Mo. 172; State v. DeLay, 93 Mo. 102. (4) Instruction No. 2, given on behalf of the State, is not erroneous. It sets forth the general charge, is bottomed upon the indictment, and required the jury to find every element of the crime before it could convict. It properly submitted the question of conspiracy. Sec. 4565, R. S. 1909; State v. Keyes, 196 Mo. 161; State v. Sykes, 191 Mo. 78; State v. Potts, 239 Mo. 411; State ex rel. v. Ice Co., 246 Mo. 219. (5.) Instruction No. 7, given for the State, states the law. State v. Hoshor, 67 Pac. 388-. (6) The remarks of counsel do not warrant a reversal of this case. State y. Hughes, 258 Mo. 271; State v. Prunty, 208 S. W. 97!. (7) The remarks of the court do not warrant a setting aside of the verdict. State v. Hughes, 258 Mo. 271. (8) The court did not err in refusing to discharge the jury because of the crying of Mrs. Massie.
   MOZLE'Y, C.

Joseph S. Chick, Jr., was indicted by a grand jury in the Circuit Court of Jackson County, Missouri, in which he is charged that by the use of false representation and pretense he feloniously defrauded Miss. A. P. I. Kennedy of the sum of $1600. He was tried in said court before a jury on the 11th day of the September term, 1918, and convicted, and his punishment fixed at two years in the penitentiary. Motions for new trial and in arrest were filed and overruled by the court, and exceptions to that action were duly preserved. The ease is regularly here on defendant’s appeal.

Miss. A. P. I. Kennedy was a school teacher and had been for more than thirty years. She had taught for thirty years in Kansas City; she taught in the country before going to Kansas City. Defendant had gone to school to her in the country when he was a small boy, and she had known him since that time; she knew defendant’s family and had great respect for them and, also, for the defendant. By dint of perseverance and careful saving she had, during the thirty years of her scholastic work, gotten together $2500 or $2600 in money.

The defendant had also moved to Kansas City and was operating a business known as the ‘ ‘ Chick Investment Company,” and the entire operations of the concern were in his hands (he owned all the stock) and were performed personally by him or under his immediate supervision and direction. It appears from the evidence that a part of his business was to sell notes secured by first mortages on approved real estate to customers who desired to make what they thought were safe investments (and such investments were represented by him to be safe) and make the amount thus invested earn interest until the note would fall due and be paid off by the maker thereof. Miss Kennedy db-sired to invest her money in this wise with defendant, in fact defendant earnestly solicited her to do so, and it resulted that he sold her two notes on December 16, 1914, which defendant told her were secured by first mortages. This transaction is detailed by the testimony of Miss Kennedy as follows:

£ Q. Did you have any business dealings with him. (defendant) — state whether or not you had about the month of December, 1914? A. December 16, 1914, I bought two notes from him that he told me were secured by first mortgages.

££Q. Had you had a conversation with him about a business matter about the 1st of December of that year? A. The 2nd of December*. A note was secured.

“Q. Did you go to where he was and talk with him? A. Yes, sir.

££Qi Where did you see him? A. Why, outside that railing; he came to meet me outside of that railing; where Miss Winship was back of the railing he came to meet me.

££Q. You mean in the Scarritt building? A. Yes, sir; not in his private office.

£iQ. Then your meeting was in his office in the Scarritt building? A. Yes, sir.

££Q. In what county and state is that located? A. Jackson County, State of Missouri.

££Q. What offices did he occupy there at that time; that is,' on what floor were the offices located and how many rooms did he occupy, and what signs were on the door as you recall. A. At the entrance was' ££J. S. Chick Investment Company;” a large entry hall and right from the hall you entered into the office.

££Q. Were you in the Chick Investment Company’s office? A. Yes, sir.

££Q. Did you talk with Chick there? A. Yes, sir.

££Q. What did you say to him and what did he say to you? A. I told him I had come for the $1600 due on a note I had bought from him (a prior transaction) which he paid with interest due thereon and he urged me to re-invest the money with him, you will take that to somebody else and you ought to let me invest it. I collected the note which with the interest amounted to $1648. This I deposited in the bank and it ran my available cash to a little more than $2500.

“Q. Now, after this conversation did you have a second conversation with him' about the amount of cash you had available? A. Yes, sir. It was between the 2nd and 16th of December, 1914. I had a telephone conversation with him, I told him I would consider; that he could show me. I told him I would consider it and he could come out if he had notes secured by first mortgages and places, he could come out and show me, and an appointment was made to meet me at the school house at noon, and between the 2nd and 6th of December, 1914, he called.

“Q. How did you g’o to see the places, if at all? A. He took me in a car. He took me to 3438 Bellefontaine; there were two houses there, one faced Bellefontaine and the other faced Howard; I told him I would consider the house facing Bellefontaine, but would not consider the other at all.

“Q. Did he tell you the amount of the mortgage on the one you said you would consider? A. $1200.

“Q. Then where did you go? A. To 3806 Olive.

“Q. Did you know Edward Yan Osten? A. Not at that time. He did not tell me who owned the property he had shown me.

“Q. “W^hat did he say about the sort of paper he had against those properties ? A. He said he had first mortgages; that they were first class and that he would see that I was' protected. He showed me the house at 3806 Olive and showed it was well worth buying a note for $1600 on this house. I told him I did not have enough money to make the investment, as. the two sums aggregated $2800, and all I could get together was $2500.” An arrangement was made by which the witness g,ave defendant her personal note for $300 and her check for $2505.14, the $5.14 representing the accrued interest on the $2500. “I gave my personal note and the check to defendant personally, and the two deeds of trust, one the Bellefontaine property and the other the Olive street property, together with the fwo notes that defendant said were secured by first mortage, were handed to me, hut the abstract was kept by; defendant in his office, on the ground, as he said, it would be safer with him, but he gave me a receipt for it.” The check paid to defendant was drawn December, 15th, and delivered to defendant on the 16th of December, 1914, and the deal closed on that day, and was cashed by the Chick Investment Company.

• The proof further shows, as a sequel to the story, that Mrs. E. T. Massie had, on the 9th day of December, 1914, bought from defendant the identical note and deed of trust which he subsequently assured Miss Kennedy he was selling* to her, and paid for it with the following check:

“No. 65. Kansas City, Mo. Dec. 9th, 1914.

“Western Exchange Bank.

Kansas City, Mo.

“Pay to the order of J. S. Chick Investment Co.

Sixteen hundred and no/100 dollars. ($1600.00)

“E. T. Massie

“E.' M.”

This check was cleared and was marked paid and Chick got the money named therein. At the time of receiving the check he gave Mrs. Massie a real-estate-bond note and in a day or two brought to her home the deed of trust securing the same which, upon the pretext of caring’ for it and looking after insurance, taxes, etc., he induced her to allow him to take charge of for her, and this enabled him to deliver it later to Miss Kennedy, which he did.

On the 22nd of November, 1915, the Chick Investment Company collapsed, and Hunt C. Moore was appointed its receiver. During the course of the receivership it developed that defendant had been largely engaged in the duplication of the notes described in the deeds of trust and that Miss Kennedy’s note was a duplicate and not the note he had assured her he Was Belling to her.

The defendant admitted to the receiver that Miss Kennedy’s note was a duplicate of the original note. With the exception of recalling J..R. Morrison, a deputy recorder, as a witness, defendant offered no testimony, hut stood on his demurrer to the case made by the State* The testimony of Morrison related only to the course of business in the recorder’s office as to the handling and recording' of deeds of trust and their delivery to the owners.

The demurrer was overruled by the court and is here assigned as error by defendant.

I. Appellant has charged to the credit of the court nisi the commission of one hundred alleged errors in the trial of the case, but we think -the points determinative of this case may be brought within a much narrower scope: (1) Is the indictment good? (2), Were the jury properly instructed, and (3), Is the testimony sufficient to justify the jury finding, the defendant guilty? If so, his conviction should be iipheld; but if-otherwise, it should be reversed and remanded.

Appellant contends that the indictment is fatally defective and will not support a conviction because (he says) it fails to allege that defendant sold, assigned or delivered the note- to Miss Kennedy, or- that Miss Kennedy bought it and parted with her money for it, relying on the false or fraudulent representations of defendant.

II. The indictment, so far as necessary to quote, reads as follows:

n c men ’ “The grand jurors for the State of Missouri, duly impaneled, sworn and - charged to inquire within and for the body of the County of Jackson, upon their oath present and charge that one Joseph S. Chick, Jr., whose Christian name in full is unknown to said jurors, on the 6th day of December, 1914, at the County of Jackson and State of'Missouri, contriving, designing and intending to cheat and defraud one A. P. I. Kennedy of her- goods and chattels and personal -property, - did apply to and request the said A. P. I. Kennedy to purchase from him, the said Joseph S- Chick, Jr., what purported to be a first-mortgage real-estate-bond note, which he, the said Joseph S. Chick, Jr., then and there had in his possession and under his control, and the said Joseph S. Chick, Jr., did then and there unlawfully, feloniously and designedly, with the felonious intent then and there to cheat and defraud the said A. P. I. Kennedy of her money, and goods, chattels and personal property, represent, pretend and say to the said A. P. I. Kennedy that said first-mortgage real-estate-bond note was then and there secured by a first deed of trust on the following property and premises, to wit: [Here the property upon which Miss Kennedy took the two notes herein referred to is described.]

“And to further effect his design to cheat and defraud the said A. P. I. Kennedy of her money, goods, chattels and personal property, he, the said Joseph S'. Chick, Jr., did then and there unlawfully, feloniously and designedly, with the felonious intent then and there to cheat and defraud -him, the said A. P. I. Kennedy of her money, goods, chattels and personal property, exhibit and show to the said A. P. I. Kennedy a certain first-mortgage real-estate-bond note and deed of trust which he, the said Joseph S. Chick, Jr., had in his possession and under his control, which said first-mortgage real-estate-bond note and deed of trust is as follows: [Here the same is set out in full.]

“And the said Joseph S. Chick, Jr., did then and there unlawfully, feloniously and designedly, with the felonious intent then and there to ohéat and defraud the said A. P. I. Kennedy of her money, goods, chattels and personal property, represent, pretend and say to ‘the said A. P. I. Kennedy that said first-mo.rtgage real-estate-bond note as hereinbefore set out and described was then and there a true and genuine first-mortgage real-estate-bond note, and was then and' there the first-mortgage real-estate-bond note described and referred to in the deed of trust heretofore set out in the indictment, arid that said'first-mortgage bond note was then and there a true, genuine and subsisting first claim and demand against the property hereinbefore described and set out in the indictment.

“And the said A. P. I. Kennedy, believing the false and fraudulent statements and pretenses so made as aforesaid to her, the said A. P. I. Kennedy, by him, the said Joseph S. Chick, Jr., to be true, relying thereon and being deceived thereby, was induced by reason thereof to pay, and did then and there pay, to the said Joseph S. Chick, Jr., the sum of sixteen hundred dollars, lawful money of the. United States, of the value of sixteen hundred dollars, of the money, goods, chatties and personal property of the said A. P. I. Kennedy..

“And the said Joseph S. Chick, Jr., by means and by use of the false and fraudulent statements and pretenses so made as aforesaid to her, the said A. P. I. Kennedy, by him, the said Joseph S. Chick, Jr., did then and there unlawfully, feloniously and designedly, with the felonious intent then and there to cheat and defraud the said A. P. I. Kennedy, of her money, goods, chattels' and personal property, obtain of and from her, the said A. P. I. Kennedy, sixteen hundred dollars, lawful money of the United States, of the value of sixteen hundred. dollars, of the money, goods, chattels and personal property of the said A. P. I. Kennedy.

“Whereas, in truth and in fact, the said first-mortgage real-estate-bond note which he, the said Joseph S. Chick, Jr., then and there exhibited and showed to the said A. P. I. Kennedy, was not then and there a true and genuine first-mortgage bond note described and referred to in the deed of trust hereinbefore set out in this indictment, and was not then and there a true, genuine first and subsisting claim and demand against the property hereinbefore set out and described in this indictment which he, the said Joseph S. Chick, Jr., then and there w'ell knew, against the peace and dignity of the State.”

Set forth in the body of the indictment is the following assignment and transfer by defendant of the note in question to Miss Kennedy:

“For value received The J. S. Chick Investment Co. hereby assigns and transfers this note or bond. to Amanda P. I. Kennedy or order, without recourse, tog-ether with all its interest in and rights under the deed of trust securing same.

“The J. S. Chick Investment Co.

“By J. S. Chick, Jr.

Pesident. ’ ’

III. The testimony of Miss Kennedy shows that said note and deed of trust, together with the note and deed of trust on the Bellefontáine property, was delivered to her by defendant in his office, on the 16th day of December, 1914,' which was the time the money was paid to defendant and the deal closed.

This testimony was objected to because the indictment failed to charge an offense against defendant, and that such testimony constituted a variance from the charge made in the indictment. The objection wa,b overruled by the court and we think properly so. Such objections to the introduction of testimony made verbally during the courbe of the trial avail nothing, nor do motions to strike out such testimony accomplish anything. It is just the same as if neither had been made.

This court has condemned and declined to tolerate such practice. In the case of State v. Loesch, 180 S. W. 877, it was said: “The repeated efforts of counsel for defendant to assail the integrity of indictments or informations by oral objection thereto, and thus avoid the requirements of the statute, have frequently been condemned by this court and termed ‘innovations in the practice which will not be tolerated. ’ ”

fi^S. °f IV. Is the indictment subject to the assaults made upon it by defendant? Section 4565, Revised Statutes 1909, •'provides that:“ Every person who, with ^tent to cheat or defraud another, .shall designedly, by color of any false token or writing, or by any other false pretense, . . . obtain from any person any money, personal property . . . or other valuable thing or effects whatsoever . . . shall upon conviction be punished by imprisonment in the penitentiary for a term not exceeding seven years.”

We think the indictment in the case in hand is drawn under the provision of Section 4565, and that it states every constituent fact necessary to be stated under sa,id .section to charge the offeh.se denounced therein) against defendant. Nor is it subject to the constitutional abjection made, that it fails, to advise the defendant of “nature and cause of the accusation’’ against him. [State v. Loesch, 180 S. W. 875; State v. Terry, 109 Mo. 601; State v. Martin, 226 Mo. l. c. 548; State v. Woodward, 156 Mo. 143; State v. Samuels, 144 Mo. 68; State v. Chissell, 245 Mo. l. c. 557; State v. Myers, 82 Mo. 558; State v. Vandenburg, 159 Mo. 230; State v. Kelly, 170 Mo. 151; State v. Hubbard, 170 Mo. 346.]

We, therefore, hold that the indictment is good, and rule the contention against appellant. ' ,

variance V. As to the alleged variance between the avermerL^s lb.e indictment and the proof offered in support thereof, Section 5114, Revised Statutes 1909, provides as follows:

“Whenever on the trial of any felony . . , there shall appear to be any variance between the statement in any indictment , . . .and the evidence offered in proof thereof ... in the name or description of any matter or thing whatsoever, therein named or described . . . such variance shall not be deemed grounds for an acquittal of the defendant, unless the court before which the trial shall be had shall find that such variance is material to the- merits of thé case and prejudicial to the defense of the defendant, ” ■ •

In the case of State v. Jackson, 221 Mo. l. c. 506, the precise question here raised was passed on, and Judge Pox, speaking for the court, said that it had been! expressly ruled in the case of State v. Carragin, 210 Mo. 351, and State v. Sharpless, 212 Mo. l. c. 202, that the circuit court having failed to find that there was any material variance, an omission in the information of the genuine indorsement of the defendant furnished no ground for the reversal of the judgment. In the! case of State v. Foley, 247 Mo. l. c. 633, this court, in passing upon a question of variance announced the law as follows:

“Defendant’s learned counsel strenuously urges that there is a variance between the charges contained in the second count and the proof adduced to support this charge; in that defendant was indicted- for obtaining ‘twenty dollars in lawful money of the United States,’ While the proof showed that he obtained a ‘warrant on the city treasurer of the City of St. Ltouis for the value of twenty dollars.’ It'may well be doubted, whether upon the facts in evidence, this contention has any merit. The testimony shows that the voucher '(called by some of the witnesses, and in the first count of the indictment a ‘warrant’) was prepared in the office of the City Auditor; there stamped ‘City Auditor’s Office, surrendered;’ that the voucher with the receipt 'appended Was then passed., by the Auditor’s offiice to the office of the City Treasurer, where the defendant called when he came to be paid; that he signed the appended receipt, wrote his name in the form of an indorsement on the back of the voucher, and got the twenty, dollars in question. The voucher was paid on the same day it was issued, for it was stamped ‘City Treasurer’s 'Office, September 30, 1910, St. Louis, Missouri.’ After payment the voucher was returned to the Auditor’s Office and filed, being stamped, ‘Paid and filed, October first, 1910, W. R. Hodges, Auditor.’ From these facts, we are impelled to the conclusion that the delivery of the voucher to defendant, if it ever was physically delivered to him, was but a mere detail of the manner ip which he obtained the twenty dollars .'in question. That it all was, in a sense, but part of the res gestae. ■

“If defendant was prejudiced, such hurt accrued to him by reason of a variance. The statute requires matters of alleged variance to be called to tbe attention of tbe court. Having neglected to do so we are not bound to consider it now, the more so, since we cannot find from the facts that defendant’s rights were prejudiced by reason of the alleged variance, when we look at the whole record. ’ ’

Appellant raised the point of alleged variance between the charge in the indictment and the, proof adduced in support thereof,'but the court which tried the case and to which the question of variance w'as submitted found that no variance existed. Looking at the evidence as a whole we are unable to find any variance between the charge made and. the proof adduced and agree with the ruling of .the court nisi. We, accordingly, rule the point against appellant. ,

VI: Appellant complains of all 'the jnstructionls (fifteen in number) given by the iState, and characterizes éach of them as reversible, error. ’ We cannot believe that counsel is serious in this contention, but prefer to conclude rather that this assignment, (together with the other ninety-nine) was an attempt not to allow any error or supposed error to escape review in this court.

Instruction 1-a merely told the jury that the instructions given were the law of the case and that it was their duty to apply the proven facts to the law as given and return their verdict accordingly, and not otherwise. Comment on this instruction would'be a waste of time.

Faise Pretense Instruction No. 2 submits fori the finding of vthe jury, beyond a reasonable doubt, every element of the crime charged against defendant — whether the false statements and pretenses were made to Miss Kennedy, whether she relied upon them and was deceived there-an(l on account thereof was induced to, ’ and did, part with her money in the purchase of note and deed of trust; the truthfulness of said representation ‘and pretenses is properly falsified and that defendant at the time knew they were false and untrue, and if these facts were found to exist the jury would Ifind the defendant guilty as charged and assess his punishment at imprisonment in the State penitentiary for a term not less than two nor more than seven years. We think! this instruction properly submitted the issue to the jury.

Presumption of Innocence, Instruction No., 3 is upon the presumption of defendant’s! innocence of the charge against him, and if the jury had a reasonable doubt of defendant’s guilt they would aquit him. This instruction is a proper one and there was no error in giving it.

Credibility Witnesses. of Instruction No. 4 is the usual and approved instruction to the effect that the jury are the sole judges of the credibility of the witnesses, and the weight and value to be given to their testimony, and is not subject to the objection made by appellant.

Against^eif. Instruction No. 5 — that statements (if any) made by defendant against himself the law presumed to be true, because said against himself; that what he said for himself (if anything) the jury were not bound to believe, but the jury may believe or disbelieve such statements as they are shown to be true or false by the evidence in the ease. There is nothing wrong with this instruction and the court committed no error in giving it.

Offenses. Instruction No. 6 reads: “The court instructs the jury that the evidence introduced as to other transactions, if any, is submitted to your consideration for the sole purpose of shedding light (if they have .that effect) upon the intent and motive of the defendant set out in the information [indictment] in- this oase> ^or ke is now on trial, and for no other purpose. The instruction then proceeds to properly ¡define • •intent and-, motive.” We hold, under the facts of this case, that the court did not-err in giving said instruction.

Check a Money. Instruction No. 7 told the jury that if Amanda P. I. Kennedy gave and delivered to defendant (on the 16th day of December, 1914) a check for $2505.14, or more, and that he thereafter cashed said check and received therefor cash, currency, or by charging the same against ^ie of Amanda P. I. Kennedy, then the legal effect of the delivery of said check to defendant by her was the delivery to him of money and you should so find.-” W?e think this in-instruction is well enough, since as pointed out in the case of State v. Foley, supra-, it was merely the means, the vehicle, by which defendant g'ot the cash money, which defendant did in the instant case, at the Traders National Bank, on the 17th day of December, 1914, the next day after the check was delivered to him. We think, as held in the Foley case that the receipt of the cheek and the conversion of it into cash was a part of the res gestae in obtaining the money, and that the instruction was properly given.

Duplication. Instruction No. 8 is a duplicate of Instruction No. 3 upon the presumption of) defendant’s innocence until proven guilty beyond a reasonable doubt. it was not necessary to- duplicate this instruction yet it submits to the jury the same proposition as No. 3, and is couched in the same language. We think no prejudicial harm could possibly result therefrom and that the ’giving of it is not reversible error.

Indictment As Evidence. Instruction No. 9l advises the jury that the information (indictment) is a mere formal charge and no evidence of defendant’s guilt and that they would be careful not to allow themselves to be influenced on account of the indictment. Appellant complains that said instruction is reversible error, but we are unable to agree with him. We think the instruction is a correct one and should have been given.

from the evidence that Miss Amanda P. I. Kennedy

Representations. Instruction No. 10 told the jury that if they found parted with her money upon the faith of the note and mortgage and not upon the representations made Vthe defendant, if he did make any, they would'find defendant not guilty. Defendant’s objection to this instruction cannot be regarded otherwise than frivolous.

Instruction No. 11 that the false representations, if any, were not made for the purpose of obtaining any sum of money from Miss Amanda, P. I. Kennedy and that she did not rely thereon, and that she was not induced thereby to part with her property, then they would acquit the .defendant. We axe unable to perceive why appellant objects to this instruction, but whatever may have been his idea, we think the objection is utterly without merit.

Fair Trial Appellant’s objection to' Instruction No. 12 is not capable of being understood. It reads: “The court instxucts the jury that the defendant is entitled to a fair and impartial trial and he cannot be convicted except that ^16 Pr°ven guilty beyond a reasonable doubt, and facts and circumstances from which nothing can be reasonably inferred than a suspicion that he might be guilty, will not justify his conviction. ’ ’ His objection to this instruction implies the idea that he was opposed to having a fair and impartial trial and opposed to not allowing the jury to act upon mere suspicion of his guilt. We differ from appellant in this respect and notwithstanding his objection, we hold that he was entitled to a fair and impartial trial and that there was no prejudicial error committed by the giving of said instruction.

Every Material Instruction No. 13 told the jury that it devolves on the State to show by the evidence to the satisfaction of the jury beyond a reasonable doubt every material fact which under these instructions is necessary to constitute the offense with which the defendant stands 0]larged, anc[ if the jury have a reasonable doubt arising from the insufficiency of the evidence of the existence of any material fact it was their duty to acquit the defendant. There was no error in giving this instruction.

Nor was there any error in giving Instruction No. 14 which defined wilfully to mean intentional and not accidental.

irst Mortgage. Nor do we think that the court committed error in giving Instruction No. 15'. If Mrs. Massie bought the original note of $1600, and the deed of trust covering the premises at 3806 Olive Street and on or j_e£ore ^ qqth day of December said deed' of trust was recorded, she had a.first lien on said property. Miss Kennedy’s note and the identical deed of trust first sold and delivered to Mirs. Massie, and taken back by defendant under the pretense of looking after said property, making collections, paying taxes, etc., and delivered to Miss Kennedy on the 16th day of December, 1914, would not, as between these women, interfere with Mrs. Massie’s prior rights in the property, nor prevent Miss Kennedy’s note from being a duplicate and not the genuine first-mortgage bond note secured by said deed of trust.

We have thus carefully reviewed th© instructions given by the court and we have reached the conclusion that they cover every necessary feature of the case for the jury’s enlightenment.

ofU císe VII. The defendant asked twenty instructions which the court refused to give. The last, number 20', was a request that the court instruct the jury upon each and every phase of the law involved in the controversy, whether the same be requested or omitted to be asked by his counsel, and the court requested the attorneys for defendant to point out any instruction desired and stated it would be given if the law had not already been given..

It is the duty of the court to’ give the jury such written instructions, whether requested' ;or not, upon questions of law arising in the case which are necessary for their information in giving their verdict. [Sec, '5231, R. S. 1909.] But it would not b'e proper for the court to go beyond the requirement of the. statute, even though he was given a blanket request (as in the instant case) to do so. All that is required is that instructions be given covering every feature of the case necessary for the jury’s information in giving their verdict.

We have carefully examined the other nineteen refused instructions and have reached the conclusion that they were properly refused. All peremptory instructions were properly refused and the others covej; substantially the same ground as the instructions for the State. It has been held that the defendant has no right to have the State’s instructions duplicated, [State v. Guinn, 174 Mo. 680.] It is manifest that such course would- tend to confuse the jury rather than to make clear the law applicable to the case. We hold that the court did not err in refusing to give said instructions.

"VIII. Appellant complains that the judgment should be reversed on account of alleged improper remarks made by counsel for the State, and because the court refused to quash the panel, for the reason that one of the witnesses, while being subjected to a rigid cross-examination by defendant’s counsel, gave way to her emotions and cried in the presence of the jury, which resulted in her temporary withdrawal from the witness stand until her composure was regained.

As to improper remarks of counsel we are unable to discover, if any were made, any failure on the part of the court to promptly sustain an objection thereto and-admonish counsel to keep< within the record and direct the jury to disregard such statements. Under the facts of this case, if remarks made were improper, they would not be prejudicial error sufficient to justify a reversal of the case.

Upon the motion to quash the panel the following transpired:

“Mr. Brewster: I move the court to charge the jury that it is their duty to disregard absolutely this incident, that is, the crying of the lady, ánd to charge the jury that they have no right to let any sympathy that they may feel for her weigh with them in the slightest hit in making up* their verdict in this case, that is, sympathy because of crying!.

“The Court: You mean you want me to charge them verbally, or instruct them? ■

‘ ‘ Mr. Brewster. : Charge them verbally.

“The Court: Right now, when they come bacfcl

“Mr. Brewster: Yes, sir: and also that the conduct of the assistant prosecutor in carryinjg the ydtness from the chair and from the courtroom is improper.

“M!rs. 'Etta Massie (recalled).

“The Court: Now, Mrs. Massie, if you have recovered and think that you are strong enough to go on with the testimony and not break down any more, we will proceed, otherwise we can’t. Under the law, that thing ought not occur in the court room. The tears of a woman always excite a man and is calculated to arouse sympathy for her, and the court room, of course, is not the place for that. You will have to avoid that now and nerve yourself up to go through with this and answer the questions that the lawyer propounds to you, and if you think you are able to ¡go on without brealdng down any more we will proceed with the case. Of course, you will have to tell some time and we want you to be very particular and not cry any more.

‘ ‘ The Witness : I will try not. It was just a nervousness.

“The Court: There is nothing to cry about. You are being treated perfectly fair by the lawyer. Mr. Conrad wasn’t saying a thing that was calculated to arouse you in any way and is not going to. If you will just listen to what the questions are, and then answer, you will get along all right. You may bring the jury. Proceed.

“ Jury Present.

“The Court: Gentlemen' of the Jury, I want to say to you whatever impression that you may have had made on you by reason of this lady breaking down, or whatever feeling or whatever reason or anything, of that -kind, may have found lodgment in your mind in regard to it, you must eradicate it, and not allow it to affect you one way or the other, the fact she broke down and commenced crying. That hasn’t anything to do with the case; that must not affect you in one way or the other, or have any-impression on you one way or the other, directly or indirectly. ■ : p

“Mr. Brewster: The, defendant objects to the fact that the court only partially complied with the motion of the defendant as. to the charge to the jury, and excepts,

“The Court (Interrupting): Anything I left out, if you will call my attention to- it I will give it if it is proper.

“Mr. Brewster: I asked you to instruct them with reference to the conduct of counsel.

“The Court: If you gentlemen saw an attorney standing here by her, or saying anything to- her, or taking her away, that must not have any effect one way or the other. Proceed, Mr. Conrad.”

We agree with the action of the trial court in the premises, and overrule the assignments.

The verdict of the jury and the judgment and sentence of the court are in regular and proper form.

The defendant has been convicted of the crime charged against him which he committed under circumstances that furnish a sorry commentary upon his honesty, uprightness and integrity. He took advantage of one whom he had known more than thirty years and had every reason which would prompt an honest man to deal honestly with her, but he misled and overreached her by his false and fraudulent representations and induced her to give him her money and he gave her nothing in return. That his guilt is abundantly established by the evidence we have no doubt. We think he has had a fair trial, and that his sentence should be affirmed.

It is so ordered.

Wihite, G., concurs; Bailey, G., not sitting.

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

All of the judges concur.


source: Caselaw Access Project

author: RAG-LAN'D, C.

license: Public Domain

text:
    MISSOURI REAL ESTATE & LOAN COMPANY, Appellant, v. MARY J. GIBSON and BUCHANAN COUNTY.
    Division One,
    April 10, 1920.
    1. TAX LIEN: Suit Against Mortgagee Alone. A lien for taxes cannot be fastened upon land in a suit in which a mortgagee, out of possession, alone is made defendant.

      2. MORTGAGE: Estate in Lands. A.mortgage, or a deed of trust in the nature of a mortgage, given on land to secure the payment of a debt is, in its last analysis, a lien and nothing more. It is neither an estate in land, nor a right to any beneficial' interest therein; it is neither jus in re nor jus ad reru; it is so intangible, that it cannot be assigned, nor levied upon or sold under execucution; it is merely the right to have the debt, if not otherwise paid, satisfied out of the land.
    3. —:-: -: Suit Against Mortgagee Alone: Tax Lien. Under Section 8711, Revised Statutes 1909, if no one having any “right, title, interest or estate” in the land sought to be charged With a lien' of special tax-bills is made a party defendant, the court is wholly without jurisdiction of the subject-matter. The statute provides that the special judgment in such a case and a sale on execution thereof vests all “the right, title, interest and estate” of the defendant in the purchaser “and discharges the lands from any liens or encumbrances thereof.” But a mere mortgagee, or the cestui que trust in a' deed of trust in the nature of a mortgage, out of possession, has no estate in the land, and no interest that can be sold, and a suit for taxes against him alone cannot be maintained. It is the land that is subject to the tax, and not the mortgagee’s lien thereon. [Distinguishing Walker v. Mills, 210 Mo. 684.]

      4. -: —■-r: -'■ — : -: Why Mortgagee a Necessary Party. The mortgagee is a necessary party in a suit to- enforce a tax lien not for the purpose of giving the court jurisdiction of the interest in the land subject to his lien, but in order that his lieu may be discharged and his right to redeem from the superior lien -of the tax bill may be foreclosed. ,
    Appeal from Buchanan Circuit Court. — Hon. Charles H. Mayer, Judge.
    Affirmed.

      John E. Dolman for appellant.
    The holder of a deed of trust is an owner within the meaning of this statute, Sec. 8711, R. S. 1909. MoreyEngineering Co. v. Ice Co., 242 Mo. 241, 259; Jaicks v. Oppenheimer, 264 Mo. 693-; Barnes Asphalt Co. v. Field, 174 Mo. App. 11.

      C. F. Strop and Graham <& Silverman for respondent.
    (1) While a proceeding to enforce the lien of a special tax hill is á proceeding in rem, yet there must he" a proper party before the court in order to confer jurisdiction and a necessary party in the action is the owner of the fee. Sec. 8711, R. S. 1909; Penkinson v. Meredith, 158 Mo. 463; Hernán v. McNamara, 77 Mío. App. 15; Paving Co. v. Field, 174 M!o. App. 14; Jaicks v. Sullivan, 128 Mo. 184; Gitchell v. ICreidler, 84 Mo. 47. (2) Under similar staitute for the foreclosure of mortgage, owner of equity of. redemption is necessary party to confer jurisdiction. Sec. 2828-, R. S. 1909; MfeCauley v. Brady, 123 Mo. App. 564. (3) If Buchanan County is possessed of an interest in the property as contended by appellant then such interest is not subject to appellant’s claim. Clinton ex rel. v. Henry Co., 115 Mo. 557. (4) Plaintiff’s ignorance of the .death of M!ary J. Gibson is no excuse for failure to make the owner of the fee a party defendant. The law casts the burden on the contractor of ascertaining who is the legal owner of the property. While ordinarily the making of the record owner a party will satisfy this requirement, yet the exception to this rule is ownership by descent, and in such case the actual owners must be made parties defendant. P'aving Co. v. Realty Co., 16® Mo. App. 481; Jaicks v. Sullivan, 128 Mo. 177.
   RAG-LAN'D, C.

This is. a suit to enforce the lien of special tax-bills issued by the City of St. Joseph for street improvements. The petition, naming Mary J. G-ibson and. Buchanan County as defendants, was filed January 31, 1916. Summons issued in due course to both, but was served on Buchanan County only. At the time the suit was instituted Mary J. Gibson was dead, and when this fact was discovered by plaintiff the lien of the special tax-bills had expired by limitation against all persons not then made parties to the suit. At the time of her death said Mary J. Gibson was the sole record owner of the property on which the tax-bills were a lien. At the date of the institution of the suit, Buchanan County was the owner and holder of certain notes that had been given by Mary J. Gibson in her lifetime and which were secured by a first mortgage or deed of trust on the lot on which it is sought to enforce the lien of the tax-bills; it had and has no other interest in the property.

Buchanan County made default. After hearing the evidence, the court held that plaintiff could not enforce the lien of its tax-bills against the lien of Buchanan County on the lot in question, for the reason that no person owning any interest in the fee therein was made a party to the suit. Judgment for defendant, and plaintiff appeals.

“Any of the owners of the land charged, or of any interest or estate therein, may he made defendants, but only the right, title, interest and estate of the parties made defendants in any suit shall be effected or bound thereby or by the proceedings therein. . . .

Any such special judgment shall hind all the right, title, interest and estate in the land that defendants, and each of them, owned at the time the lien of the tax bill commenced, or acquired afterwards, and a sale on execution thereon shall vest all of such right, title, interest and estate in the purchaser, and discharge the lands from liens or incumbrances thereon;' ... In case the owner of any undivided interest or particular estate in any land charged be compelled by suit to pay, on account of any such tax bill, more than he ought equitably to pay, as between him and others interested in the property, such owner shall be subrogated to the lien of such tax bill, and may, by proper proceedings in any court of competent jurisdiction, enforce such lien, and have the equities between such owner so paying and such other owners or parties interested in the land 'adjusted, though such other owners or parties interested were not parties defendant to the original suit on the bill, and though such subsequent proceedings be commenced after the expiration of two years from the issue of the bill, or the party so paying shall be entitled to contribution or repayment from others, according to equity, without enforcing the lien.”

Within the purview of, the statute the suit to enforce the lien is in the nature of a proceeding in 'rem, but only “the right, title, interest and estate of the parties made defendants” are affected or bound by it. If no one having any “right, title,, interest or estate” in the land charged with the lien is a party defendant, the court is wholly without jurisdiction of the subject-matter. [Allen v. McCabe, 93 Mo. 138, 144.] The special judgment and sale on execution thereof vests all the “right, title, interest and estate” in the purcháser “and discharges the lands from any liens or encumbrances thereon.” The sole question for decision is, ■whether Buchanan County is the owner of such a “right, title, interest or estate” in the land covered by its deed of trust as would pass to and vest in a purchaser at a sale on execution under a special judgment enforcing the lien of the tax bills.

An important premilinary inquiry is, what interest or estate, if any, has a mortgagee in the mortgaged premises Í The mortgage of the present day is the product of evolution, and the decisions of the courts respecting some of its characteristics are apparently more or less incongruous. For example, we hold that after condition broken the legal title to mortgaged land vests in the mortgagee and he can maintain ejectment, yet we further hold that such vesting of the title is for the protection of the debt and for no other purpose, and when the debt is paid the mortgagee’s interest is extinguished without reconveyance. Notwithstanding a few attributes that still inhere in it as a result of its common law origin, a mortgage, or deed of trust in the nature of a mortgage, given on land to secure the payment of a debt, is now regarded in this State as being, in its last analysis, a lien and nothing more. [Dickerson v. Bridges, 147 Mo. 235, 244; Terminal Ice and Power Co. v. Ins. Co., 196 Mo. App. 241, 248.] So viewed, it is neither an estate in land, nor a right to any beneficial interest therein. It is neither jus in re nor jus ad rem. It is merely the right to have the debt, if not otherwise paid, satisfied out of the land. The debt is the essence of the mortgage, the lien a mere incident that follows it as a. shadow (Lipscomb v. Talbott, 243 Mo. 1, 31), and which, in and of itself, apart from the debt, is so intangible that it can not be assigned (Thayer v. Campbell, 9 Mo. 280), nor levied upon or sold on execution. [19 R. C. L. 311, sec. 387.] Now under any reasonable construction of the statute, applied concretely to the facts in this case, it must be held, that the tax-bills in suit were a charge on Mrs. Gibson’s land, not on the debt she owed Buchanan County, and the holder had a right to have her land, but not the county’s personal property, appropriated to its payment. And further, if the statute he construed in consonance with the principles of law applicable generally in this State in the enforcement of liens, whether contract or statutory, it must be held that, if the owner of the fee, as well as the present defendant, had been the parties defendant, and had judgment been rendered enforcing the lien, followed by execution aid sale as provided by the statute, no interest of Buchanan County in the land would have passed to and vested in the purchaser; the county’s lien, that is, its right to have the land subjected to the payment of its debt, would have been extinguished — nothing more. The debt would still have been owing by the mortgagor. As a corailary it would follow that, if the mortgagee of'the whole, as here, and the owner of an aliquot part of the land, or of an estate less than the fee, had been joined as defendants, the purchaser at the execution sale under the -'judgment would have acquired such part of the land, or such particular estate therein, discharged of the mortgage lien, but the lien as to the remaining interest or estate would have been unaffected' thereby. The purpose of the statute is to vest in the purchaser “such right, title, interest or estate”'as the defendants have in the lands “free from any liens or encumbrances thereon.” In this case, as no person who had any right, title, interest or estate in the land, as distinguished from a mere lienor, was, a party defendant, the. court’s jurisdiction as to subject-matter was wholly lacking, so far. as the enforcement of. the lien was concerned. This conclusion is not out of harmony with the ruling in Walker v. Mills, 210 Mo. 684. The question, in that case, was whether a tax judgment, in which the two defendants were the grantor and the beneficiary in a deed of trusts, respectively, and the former had not been served with process in the suit, was void. It was held that the judgment and sale thereunder passed the interest of the beneficiary, if nothing more. But the facts conclusively showed that the mortgagor had turned the' premises over to the mortgagee in payment of the debt, and that the latter had gone into possession and was in fact the owner.

sary Party?6*3" II. One of the principal objects sought to be at-' tained by the statute under consideration, in the enforcement of the liens of special tax bills, conformably to the general policy of the law in the foreclosure 'of all liens by suit, is to produce, as far ais possible, at the execution sale a perfect title. While a mortgagee or other lienor does not have any right in or to the land itself, he does have a right to have it subjected to the payment of his debt, ahd unless he is a party to the proceeding this right by the express terms of the statute is unaffected thereby: He is, therefore, a necessary party, not to give the court jurisdiction of the interest in the land subject to his lien, but in order that the lien may jbei discharged, and his right to redeem from the superior lien of the fa.x bill be foreclosed. [Stafford v. Fizer, 82 Mo. 393; Gitchell v. Kreidler, 84 Mo. 472; Allen v. McCabe, 93 Mo. 138,]

According to the views herein expressed the judgment of the trial court should be affirmed. It is so ordered.

Brown and Small, GO., concur.

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

All of the judges concur.


author: BROWN, C.

text:
    KROHN-FECHHEIMER COMPANY, Appellant, v. WILLIAM B. PALMER et al.
    Division One,
    April 10, 1920.
    1. SALES: Statute of Frauds: Place of Performance: Signing. Contracts for the sale of goods, wares and merchandise are subject to the provisions of the Statute of Frauds (Sec. 2784, R. S. 1909) without reference to the place of performance. So that where the seller’s domicile was Ohio, a contract of sale of goods to merchants in Missouri did not arise from the mere delivery in this State of the unsigned orders for the goods, or duplicates thereof.
    2. -: Acceptance: Countermand. An offer to buy goods may be withdrawn before it is accepted by the seller; and although it provides that it is not subject to be countermanded, it can nevertheless be countermanded before it is accepted by the seller. So that where plaintiff’s salesman visited defendants for the purpose of selling them shoes, and they concluded to buy, and he made two lists of shoes, on paper ruled for that purpose, with certain headings and notes printed thereon, including the statement: “This order is not subject to countermand,” one being for twenty-four pairs at $68.40, to be delivered “at once; rush,” and the other for forty-eight pairs at $11'3.35, to be delivered on February 15th, both dated November 2nd, the first marked “Order No. 23” and the other “Order No,. 24,” neither containing any words indicating a sale or purchase, neither signed by either party, nor any words indicating they were intended to be signed, neither having blank lines for signature, and one copy of each being sent by the salesman to the seller and one being left with the buyers, the orders were unilateral and were subject to be countermanded before they were accepted, and the facts indicate a guarded effort by the seller to avoid being bound until after acceptance.
    3. -: -: -: Two Orders. The fact fhat two separate or even a dozen pieces of paper were used in listing the goods sold does not make separate and distinct orders for goods bought; but in view of the facts of this case, where one list of shoes to be delivered “at once; rush” and were therefore available for winter sales, was marked “Order No. 23,” and another list for twice as many, at a much less price, to be delivered on February 15th and would therefore be available for spring sales only, was marked “Order No. 24,” and it is over this last.order that the question of right to countermand arises; it is held there were two separate and distinct orders, though the lists were made at the sam'e time.
    4. --: -: -: Prompt Attention. A postal card, sent by the seller of shoes to the buyer, immediately on receipt of the orders, that they “have been receive'd and will have our prompt attention,” in the absence of a further showing of the intention of the parties, does not amount to an acceptance, but only to a promise that their acceptance will be considered, and therefore-does not forestall a countermand.
    5. -: -: -: Separate Orders: Accord and Satisfaction. If the purchase of goods by defendant consisted oi; two separate and distinct orders, a cancellation of one of. them before acceptance prevents recovery on that order by the seller, although the buyer paid for the goods embraced in the other; and as the buyer cancelled the one sued on before it was accepted, the question whether payment for the goods called for by the other constituted full satisfaction is not for consideration.
    Appeal from Poll?; Circuit Court. — Hon. C. H. SJdnker, Judge.
    Affirmed.

      Herman Pufahl for appellant.
    (1) The court erred in excluding that part of the order of November 2nd, which was to be shipped “at once;” also excluding the bill of lading for that part of the shipment. These were clearly competent to- show: first, that defendants had no right to countermand any part of the order of November 2nd; second, that plaintiff’s. place of business was in Cincinnati, Ohio; third, they were especially important, in view of the fact that no place of delivery is mentioned in the order, and the defendant Palmer testified that defendants paid the-freight on these goods, thereby clearly indicating that the place of delivery was at plaintiff’s place of business, or at least that delivery to the railroad company in Cincinnati constituted delivery to defendants; and fourth, that plaintiff delivered part of the goods; and that such delivery was to the same carrier, as that part of the order shipped on February 23rd. (2) The letters of November 24th and 30th were incompetent. Defendants had no right to countermand or cancel the order; therefore, all; evidence as to the attempted countermand or cancellation of the order was inadmissible and incompetent. (3) The court correctly declared the law to be that the entire bill of ¡goods ordered by the defendants on November 2nd constituted but one order or purchase. Rickey v. Tenbroeck, 631 Mo. 563; Earl Fruit Co. v. McKinney} 65 Mo. App. 220; Parlin & Orendorff Co. v. Boatman, 84 Mo. App. 72; Krippendorf-Ditman Co. v. Hunt-Riddick, 190 S. W. Rep*. 44. (4) Even though the goods were to be manufactured afterwards, yet the transaction was a purchase and sale. Pratt v. Miller, 109 Mo. 78; Burrell v. Highleyman, 33 Mo. App. 183; Helmers, Betman & Co. v. Nagel & Co., 112 Mo. App. 202; Krippendorff-Ditman Co. v. Hunt-Riddick, 190 S. W. Rep. 44. (5) The plaintiff (vendor) had the right to treat the shoes as belonging'; to the defendants, ship them to defendants and recover the full purchase price. It was .a completed sale, an executed contract, and not an executory contract or promise to sell. The title to the shoes vested in defendants; they became the owners of them, and are liable to the plaintiff for the contract price thereof. Benjamin on Sales (4’Ed.), sec. 788; 3 Parsons on Contracts (7 Ed.), pp. 209, 210; Pond v. Wyman, 15 Mo. 183; Steinberg v. Gebhardt, 41 Mo. 519; Dobbins v. Edmonds, 18 Mo. App. 318; Ozark Lumber Co. v. Chicago Lumber Co., 15 Mo. App. 561; Koenig v. Truscott Boat Mfg. Co., 155 Mo. App. 684; Oehler v. Fruit Co., 162 Mo. App. 454; Dehner v. Miller, 166 Mb. App. 504; Potato Growers’ Assn. v. Prod. Co., 185 Mo. App. 1; Stewart Prod. Co. v. Com. Co., 189-Mo. App. 658. (6) Where the contract specifies no place of delivery, the presumption is that delivery is intended at' the place of business of the seller, or to the carrier at such place. Comstock v. Affoelter, 50 Mo. 411; Blooms Sons’ Co. v. Haas, 130 Mo. App. 122; Woldert Grocery Co. v. Pillman, 191 Mo. A,pp. 24.' (7) Defendants having accepted part of the goods purchased
      on November 2nd (that part to be shipped “at once”), this amounted to an acceptance of the entire order and of all the goods ordered. -Rickey v. Tenbroeck, 63 Mo. 569; Earl Fruit Co. v. -McKinney, 6'5 Mo. App. 229; Hollrah-Dieckman Co. v. H. & W. Cl. Co., 186 Mo. App. 213. (8) And, although they, had attempted to countermand the order, yet, having afterwards accepted part of the goods, this amounted to a withdrawal of the countermand, and they became liable for the purchase price of all of them. Frederick v. Willoughby, 136 Mo. App. 248; Koenig v. Boat Mfg. Co., 155 Mo. App. 700.

      Cunningham <& Skinker for respondents.
    (1) This is an action on an executory contract which was cancelled by the defendants and notice of such cancellation given to the plaintiff while it remained executory. The plaintiff is not entitled to recover the contract price and the judgment should be affirmed. Potato Growers Assn. v. Prod. Co., 185 Mo. App. 5. One party to an executory contract has the power to repudiate it, and the remedy of the other party, injured thereby, is an action for damages caused by the breach of the contract; he cannot thereafter himself perform and recover on the contract, nor in an action on the contract recover damages caused by the breach.. Catalogue Co. v. Car Co., 120 Mo. App. 575; Printing Co. v. Cutlery Co., 143 Mo. App. 518; Fredericks v. Willoughby, 13'6 Mo. App. 244; American Ptib. Co. v. Walker, 87 Mo. App. 50@; Potato Growers Assn. v. Prod. Co., 185 Mo. App. 1; Fireworks Co. v. Polites, 130 Pa. St. 536. (2) The cancellation of an order for goods by the buyer is a revocation of the carrier’s agency to receive them, and a delivery to the carrier under such circumstances is unauthorized. Catalogue Co. v. Car Co., 120 Mo. App. 581; Fireworks Co. v. Polites, 130 Pa. St. 536. (3) The acceptance by plaintiff of defendants’ check for $71.05 enclosed in their letter which stated that it was “to pay our account in full to date,” was an accord and satisfaction. “Where a tender is made upon condition, the person to whom it is made has bo alternative hut to refuse it or to accept it subject to the condition.” Bartley v. Pictorial Review Co., 188 Mo. App. 639; Lightfoot v. Hurd, 113 Mo. App. 612; School Board v. Hull, 72 Mo. App. 406; Andrews v. Contracting Co., 100 Mo. App. '599'; Cornelius v. Rosen, 111 Mo. App. 619; Knapp v. Syrup Co., 137 Mo. App. 472; Ward v. Packing Co., 145 Mo. App. 574.
   BROWN, C.

This cause comes to us upon a certificate of the Springfield Court of Appeals, under the provisions of Section 6 of the Amendment of 1884 to Article 6 of the State Constitution. Plaintiff is a Shoe Manufacturing Company of Cincinnati, Ohio, which sells shoes to the trade by sample through its traveling salesmen. The defendants are general merchants who deal in shoes and other merchandise at Bolivar, Missouri.

Tire petition states that on November 2, 1915 “the defendants purchased from the plaintiff goods*, ware and merchandise amounting to $181.65,” and proceeds as follows:

“Plaintiff states that it was agreed by and between plaintiff and defendants that part of said merchandise shonld be shipped and delivered at once, and that part of said merchandise should be shipped to defendants on or about the 15th of February, 1916. That defendants agreed to pay for said merchandise within thirty days from the date of shipment.

“Plaintiff states that on the 7th day of December, 1915, it shipped and delivered to defendants a part of said merchandise, amounting to $68.40, which was accepted by defendants; and that on February 23, 19T6¡, it shipped and delivered to defendants the remainder of said merchandise, amounting to $113.25. That on April 15, 1916, the defendants paid plaintiff the sum of $68.40' on part of the merchandise so purchased by defendants on November 2, 1915, and which was delivered to them on December 7, 1915. That they have failed and refused to pay plaintiff- the balance due on the goods, wares and merchandise, purchased on November 2, 1915', amounting to' $113.25; that payment thereof has been demanded and been refused. Wherefore, plaintiff says that the defendants are indebted to it in the sum of $113.25, together with the interest thereon.”

It asks judgment for the amount so alleged to be paid with interest.

. The answer is (1) a general denial, (2) that immediately after making their order of November 2, 1915, they countermanded that, portion relating to the shipment to be made. February 15, 1916, that the bill sued for was for goods to be included in that delivery, no part of which they had ever received, and (3) that they had on April 13, 1916;, sent their check to plaintiff for the sum of $71.05, with the statement that it was in full of the amount due bn account of said transaction and that the plaintiff had in due course received and cashed said check, whereby the claim sued on was -settled and extinguished.

The plaintiff replied with general denial.

The. order for the goods described in the petition was given through a traveling salesman of plaintiff who visited defendants’ store for that purpose, and was written on two different printed blanks stating the style of the goods desired as well as the quantity. One of these contained the goods delivered on December 7, 1915, and was marked in a blank for that purpose “at once rush,.” The other contained the description of the goods sued for and was marked for delivery “on or about February 15th.” Both contained the words “this order is not subject to countermand” also “no alterations or changes can be made in order after goods are cut.” Neither paper was signed by anybody. They were in duplicate, one copy of each being retained by the salesman and transmitted to plaintiff. The other copy was retained by the defendants. Both were marked subject to - approval by plaintiff. It does not appear that defendants were notified of its’ acceptance.

The plaintiff’s testimony shows that all the goods were to be manufactured at its factory in Cincinnati; that on November 11, 1915, the leather was cut for the “rush” order; that on the 16th of the same month part of the material was cut for the delivery of February 15th, and the remainder on the 20th of the same month.

Under' date of November 24th defendants wrote plairitiff as follows:

“Bolivar, Mo., Nov. 24, 1915.
“The Krohn-Fechheimer Co.,
Cincinnati, Ohio.
“Dear Sirs:
“Our order placed with you for Ladies’ shoes for February 15th delivery, through your Mr. E. L. Winey, we are obliged to cancel; also the order for two dozen pair shoes to be shipped at once, and which we have never received. We cannot use any of these numbers, as we did not buy the right shoes that we want to handle in your line. We are sorry to have to cancel the order, but under the circumstances, we are not able to use any of the above.”

This letter was received by plaintiff November 26th and was answered the next day. The answer! is not] set out in the record except that it declined to accept the countermand. Defendants’ answer, dated November 30th, is as follows:

“Bolivar, Mo., Nov. 30th, 1915.
"The Krohn-Fechheimer Co.,
Cincinnati, Ohio.
“Dear Sirs:
“We are just in receipt of your letter, dated November 27th, in regard to one that we wrote you November 24th. When we wrote you this letter and cancelled our order for shoes, we meant what we said, and there is no reason that you should write us this letter. We will not, under any circumstances, accept this order that we have cancelled.”

On December 6th plaintiff wrote:

Cincinnati, O., U. S. A,- December 6th, 1915.
“Palmer Dry Goods Co.,
Bolivar, Mo.
“Gentlemen:,
“We are just in receipt of your favor of November 30th, in answer to ours of the 27th, and while you, yourselves, may feel that you are right in your requesting this cancellation, we believe that we are entitled to some consideration in this matter. Both yonr “At Once” and February order was given to Mr. Winey as bona-fide orders, in the best of faith, and we accepted them as such and as there was not a question of credit involved, immediately prepared same for the manufacture. The order for February delivery was prepared for the manufacture as soon as received as this is one of our earliest shipping dates, and it was quite necessary that we get started with your order at Once in order to fulfill our part of the contract in getting these shoes to you on date specified in order. Now, gentlemen, we believe you will see the fairness of our position in this matter in allowing this spring order to come forward-as originally intended. In regard to the “At Once” portion of your order, same is now nearing completion and will be shipped out the latter part of this week.”

The plaintiff shipped the goods included in the rush order on the next day, and on January 11, 1910, defendants again wrote as follows:

“Bolivar, Mo., 1-11, 1916.
“The Krohn-Fechheimer Co.,
Cincinnati, Ohio.
“Dear Sirs:
“We are in receipt of your statement, dated 1-7-16, to the amount of $89.60, and on comparing it with our books, we find it to be incorrect; also on November 13th, you have us charged with merchandise to the amount of $21.20. This lot of merchandise was returned to you for credit, and in regard to the bill shipped us December 7th, for $68.40, will say that we cancelled this some time before it was shipped and you people took the liberty of shipping it just the same, and on examining these shoes, we find that they are not the shoes that we bought. We bought these for Welts and you have shipped us .McKays, and as we cannot use this kind of shoes in this make, in stock, we are returning them to you for credit. Now, gentlemen, once more we are asking you not to ship us the ladies’ pumps that were bought for spring delivery. We have written you once in regard to this lot of shoes, but have never received your acknowledgment of cancellation and if these shoes are shipped, we certainly will not acknowledge them under any consideration whatsoever. When we have received proper credits for merchandise that we have returned you, we will send you check to balance our account.”

Totally ignoring the order contained in these letters with respect to the February delivery and without answering the letter, the goods for delivery February 15th were shipped to defendants on February 23, lflOLG. On March 31, 1916, plaintiff wrote defendants urging them to receive the February shipment which was then at the railroad station at Bolivar, and enclosing a statement of their account, consisting of three items: (1) the bill for December shipment $68.40'; (2) the goods sent in February, $113.25; and (3) a charge for one pair of shoes at $2.65 sold defendants in another transaction.

The F'ebruary shipment disappears from the record in correspondence between plaintiff and the railroad company as to its disposition.

Ou April 13, 1916’, defendants sent plaintiff a check for $71.05, which is the exact amount of the December shipment, together with the pair. of shoes above mentioned, with the following letter.

“Bolivar, Mo., April 13, 1916.
• “The Krohn-Fechheimer Co.,
Cincinnati, Ohio.
“Gentlemen:
“We enclose check for $71.05 to pay our account in full to date. Please credit our account for same and oblige.”

Plaintiff received the check in due time, cashed it and retained the money, but it remains unacknowledged.

This suit is brought to recover the amount of the February shipment alone as for goods sold and delivered. The cause was tried before the court, which found for defendants and entered judgment accordingly. Further reference will be made to¡ the record as necessary.

I. B'efore proceeding to notice the questions presented by the parties we will call attention to Section 2784, Revised. Statutes 1909', which is as follows:

“No contract for the sale of goods, wares and merchandise for the price of thirty dollars or upwards, shall be allowed to be good, unless the buyer shall accept part of the goods so sold, and actually received the same, or give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum in writing be made of tbe bargain, and signed by the parties to be charged with such contract, or their agents lawfully authorized.”

Place of Performance. We do this because it seems to be an element in the construction of the transaction before us. It was held by this court quite early that such contracts of sale made in this State are subject to the provisions of this statute without reference to the place of performance. [Houghtaling v. Ball & Chapin, 20 Mo. 564.] This seems to be in line with the general tendency of the authorities in this country. [Baker on Sales,- sec. 607.] It cannot therefore be contended that any contract of purchase arose from the delivery of these orders or either of them in this State. Wej think, however, that this statute will aid us in getting to an understanding of the meaning of the facts before us.

Acceptance The defendants are general merchants of Bolivar, Polk County, Missouri, and as such deal in shoes. The plaintiff is a manufacturer and wholesale . dealer in shoes at Cincinnati, Ohio, and sells shoes through traveling salesmen, one of whom called upon defendants at ^ie*r s^ore in Missouri for that purpose. Defendants concluded to buy, and during the progress of the negotiation two lists of shoes were made on paper, ruled for that purpose, carried by the salesman, with certain headings and notes thereon including time of delivery and the statement, “This order is not subject to countermand.” One of these was for 24 pairs of shoes with price attached amounting to $68.40, and the time of delivery was indicated by] the following words: “at once rush.” The other order contained a list of 48 pairs amounting to $113.25, with time of delivery “on or about February 15, 19ll6i.” Both lists were dated November 2, 1915, and! this suit is brought- to recover the price of the goods contained in the second list for delivery on or about February 15th, The first list described is marked Order No. 23', and the other, containing the goods sued for, is marked Order No. 24.

Neither of these lists contained any words equivalent to an order for goods unless it is included in the words ‘‘order not subject to countermand.” Nor any words indicating sale or purchase. They were not signed by either party to the transaction; nor was there anything printed on them indicating • that they were intended for signatures. In this case the salesman kept a copy of each, which he forwarded to the plaintiff at Cincinnati, where they arrived on November 4th. The defendants also retained a copy of each. That the transaction was not intended as a sale is shown by the testimony of the plaintiff’s cashier, in substance, that they became effective when approved by the proper representative of plaintiff at' its office and were only executed after such aproval. Up to that time there was no contract' of sale and purchase, but it was simply an unilateral proposition to be accepted or rejected at the pleasure of the plaintiff. The words “not subject to countermand” are not explained by the parties, and we may surmise that they were intended as an oral option giving the seller a reasonable time in which to accept the order, so as to complete the contract of sale.

These papers seemed to have been drawn with care in pursuance of a design that they should not carry upon their face an imputation that they were intended as contracts of sale or that the selling agent had any other authority than to solicit the order, enter the lists of goods desired upon the blank he carried for that purpose, and to transmit it to the home office for approval and acceptance. It contained nothing on its face suggesting a place for ’signature. The provision of the Statute of F’rauds we have quoted, which strikes at the validity of these instruments as sales and not as evidence, and the studied omission not only of a signature but of any indication that a signature was intended, is sufficient evidence of the intention of the plaintiff to fully protect itself in this respect, without its testimony that its approval and acceptance was necessary to its completion. Until such acceptance should be indicated by the plaintiff it stood as a mere proposition. This raid is stated as follows: “An offer to buy or sell must continue down to its acceptance to constitute a binding contract, and ordinarily the offer may be withdrawn at any time before it has been accepted by the other party.” [23 R. C. L. p. 1287.] The same author in the next following section says: “In case of orders for goods given to a traveling salesman'of the seller, whose authority' extends only to, the solicitation of orders and the forwarding of them to his principal for acceptance or confirmation, it is well settled that the order or offer may be withdrawn at any time before it has been accepted, by the seller. Although an order does not provide that it is subject to the seller’s approval, and does provide that it is not subject to change or countermand, it, nevertheless, is held that it may be countermanded prior to its acceptance by the seller, where it' is given to an agent whose only authority is to take orders and forward them to his principal for acceptance.” This .proposition is supported by many authorities which the author cites and to which we invite attention in this connection. The “order” in this case was a guarded offer to purchase on terms evidently dictated by the seller with due regard to its own protection and we consider it in that light.

Two orders' II. Another element of this transaction presents itself for determination at this point. Did the transaction with the traveling salesman consist in one order or two?. In our ,opinion there were two distinct and sePara^e orders, each complete in itself and constituting the initial step in a separate contract to purchase. This does not follow from the fact that there'were.two pieces of paper instead of one upon which the order was expressed. Even had there been a - dozen it might have amounted; to but one single transaction without anything in the writing to the contrary. In this case it is plainly written, otherwise. Each paper upon its face is indicated to be a separate proposition. One of them describes" itself as “Order No. 23” and the other as “Order.No. 24.” Looking for an explanation of this in the terms of the proposition we find that they expressed different conditions. Order No. 23, for twenty-four pairs of ladies’ shoes, according to- safnples indicated, were not only to be delivered at once, but, dissatisfied with this expression of haste, it was further stated that they were to be rushed. The acceptance of this order with these - compelling words of haste indicates plainly promptness was an element of the transaction, and it is not unreasonable to infer from these words that an element of hurry was intended to be induced by them which did nofy exist in the. more deliberate and dignified delivery exacted by the terms of Order No. 24 foil double the number of pairs at considerable less per pair. The season was changing. Order No. 23, if rushed, would be on the shelves for winter sale, while Order No. 24 would be on hand for the opening of the spring trade. However this may be, the fact that they were distinct and separate transactions was indicated by the numbers on their face as well as a marked difference in the price of the separate’lots. No presumption could arise — in fact every presumption seems to be excluded — that the course of each of these sales was to' depend upon the course of the other, or that the “rush” order could not be rejected without avoiding the transaction as to the other. It seems to have been a wise plan intelligently executed.

Atteation. III. These orders were, by the traveling salesman who negotiated them, transmitted to the plaintiff company at Cincinnati, so that they arrived on the 4th of November. That the rush order called for an immediate acceptance or rejection and prompt notice- thereof appears plainly by its terms. The only suggestión of that acceptance which the law requires to convert the unilateral order into a mutual contract giving the defendant a remedy for its breach is founded in the statement of a witness who testified: “Before cutting these shoes, we sent to Palmer Dry Goods Company a postal cai'd, notifying them that their order had been received and would have our attention. ’ ’ This, in the ordinary- sense of the words used would mean nothing more than a promise that its acceptance would be considered. Whether these words have acquired, in law, a broader and more sweeping significance, is a matter to be determined from the books; and the frequency and confidence with which the judge who wrote the dissenting opinion of the Springfield Court of Appeals cited Ruling Case Law compelled our attention to that excellent work where we find the following; references to the acceptance of orders taken by traveling' salesmen: “In the absence of a further showing of the intention of the parties, the better view seems to be that a letter acknowledging the receipt of an order coupled with the words ‘the same shall have prompt attention’ or ‘prompt and careful attention’ is not of itself an acceptance which will prevent a withdrawal of the order by the buyer or bind the seller to fill the order, though it may be evidence to be considered with other circumstances.”1 [28 R. O. L. p-. 1289.] When we consider that this acceptance is the only thing that binds the seller to performance and thereby entitles the purchaser to relief, the reason of the rule becomes evident. This question was recently considered by the Supreme Court of Kansas in a case strikingly similar to the one at bar. [Bauman v. McManus, 75 Kan. 106.]

The plaintiff rushed this “Order No. 23,” as its evidence tends to show, by cutting the leather for the 24 pairs of shoes a week after it was received. On November 24th the defendants, hearing nothing further, can-celled both orders by the following letter:

“Bolivar, Mo., Nov. 24, 1915.

“The Krohn-Fechheimer Co.,

“Cincinnati, Ohio.

“Dear Sirs:

“Our order placed with you for Ladies’ shoes for February 15th delivery, through your Mr. E. L. Winey, we are obliged to cancel; also the order for two dozen pair shoes to be shipped at once, and which, we have never received. We canot use any of these numbers as we did not buy the right shoes that we want' to handle in your line. We are sorry to have to cancel the order, but under the circumstances we are not able to use any of the above.”

formance" This letter directs attention to the evidence that the goods included in the “rush” order had not yet been received, and plainly expressed the insistence of defendants that the two papers were distinct and separate orders, distinguished by the terms of delivery as well as the separate blank upon which it was written and the number by which it was designated upon its face. There can be no question of this, nor can there be any question that each as well as both was by the terms of this letter distinctly and definitely countermanded and withdrawn. Nor can we doubt the legal proposition that at that date, as well as on the 26th of the same month, when the letter was received, each and both these orders remained unaccepted and unilateral in its undertaking. Nothing bad occurred up to that time to give the defendants an action for a refusal of the plaintiff to deliver the goods. It is true that there is testimony that all the leather had then been cut, but a shadow is cast over that proposition by the fact that there is no reference to it in any correspondence before us until the letter of December 6, 1915, to which we will refer in •its order.

Defendants answered the letter last quoted, and the answer is not in the record otherwise than by reference to it in the following reply of November 30th:

“Bolivar, Mo., Nov. 30th, 1915.

“The Krohn-Féchheimer Co.,

“Cincinnati, Ohio.

“Dear Sirs:

“We are just in receipt 0f your letter, dated November 27th, in' regard to one that we wrote you November 2-1-th. When we wrote you this letter and cancelled our order for shoes, we meant what we said, and there is no reason that you should write us this letter. We will not, under any circumstances, accept this order that we have cancelled. ’ ’

This brought the following from the plaintiff:

“Cincinnati, O., IT. Si A. December 6,1915

“Palmer Dry Goods Co.,

“Bolivar, Mo.

‘ ‘ Gentlemen:

“We are just in receipt of your favor of November 30th, in answer to ours of the 27th, and while you, yourselves, may feel that you are right in your requesting this cancellation, we believe that we are entitled to some consideration in this matter. Both your “At Once” and February order was given to Mr. Winey as bona-fide orders, in the best of faith, and we accepted them as such and as there was not a question of credit involved, immediately prepared same for the manufacture. The order for February delivery was prepared for the manufacture as soon as received, ás this is one of our earliest shipping' dates, and it was quite necessary that we get started with your order at once in order to fulfill our part of the contract in getting these shoes to you on date specified, in order. Now, - gentlemen, we believe you will see the fairness of our position in this matter in allowing this spring order to come forward as originally intended. In regard to the “At Once” portion of your order, same is now nearing completion and will be shipped out the latter part of this week.”

It will be noticed that the 24 pairs of shoes included in the rush order had not, even then, been completed, and that the palintiff was inclined to coax the defendants do accept the “spring order” for delivery on or about February 15th. As for the rush order it expressed the determination to ship the goods notwithstanding, the’ countermand of November 24th. In answer to this the defendants wrote :. ^

“Bolivar, Mo. 1-11, 1916.

“The Krohn-Fechheimer Co.,

Cincinnati, Ohio.

“Dear Sirs:

“We are in receipt of your statement, dated 1-7-16, to the amount of $89.60, and on comparing it. with our books, we find it to be incorrect; also on November 1.3th, you have us charged with merchandise to the amount of $21.20. This lot of merchandise was returned to you for credit, and in regard to the bill shipped us December 7th, for $68.40, will say that we cancelled this some time before it was shipped and you people took the liberty of shipping it just the same, and on examining' these-shoes, we find that they were not the shoes that we bought. We bought these for Welts and you have shipped us McKays, and as we cannot use this kind of shoes in this make, in stock, we are returning these to you for credit. Now, gentlemen, once more we are asking you not to ship us the ladies’ pumps that were bought for spring delivery. We have written you once in regard to this lot of shoes, but have never received your acknowledgment of cancellation and if these shoes are shipped, we certainly will not acknowledge them under any consideration whatsoever. When we have received proper credits for merchandise that we have returned you, we will send you check to balance our account.”

It seems from the above correspondence that notwithstanding the determined efforts of the defendants to prevent it the plaintiff had forced the goods upon them by shipping them to their address at Bolivar, Missouri, and billing them at the contract price. Although the defendants claimed that they were not the kind of shoes ordered and threatened to return them, this was not done, but the defendants again in that letter distinctly notified plaintiff not to ship the February delivery, and offered, with proper credit for goods returned, to pay the balance of their account as it then stood. Disregarding tins plaintiff shipped those goods on February 23, 1916, and they are left by the record in possession of the railroad company at Bolivar, awaiting orders from plaintiff as to their disposal.

On Marfeh 31st the plaintiff wrote defendants a long letter in which it argued with much earnestness that they should receive and pay for the February shipment and enclosed a statement of its account as follows:

“Cincinnati, TJ. S. A., 3-31, 1916.

Palmer D. O. Co.,

Bolivar, Mo.

“1220.

1915

Dec. 7 M 2-10-30............$ 68.40

1916

Feb. 23 M 2-10-30 .............113.25

Feb, 26 M 2-10-30 ............ 2.65

$184.30”

This the defendants answered on April 13th with a letter enclosing their check for $71.05 “to pay our account in full to date.” This check was received and cashed by plaintiff. It includes the item of the shipment of December 7, 1915', and the charge of $2.615, omitting the item of $113.25 for the February shipment then *n the hands of the railway company.

Settlement. IY. It is evident that from November 26th, when the letter was received by plaintiff definitely and distinctly cancelling both these orders and each of them, they both stood cancelled and withdrawn^ and that it required the consent and action of both parties to breathe new life into them or either of them. Each stood upon its own foundation, and to give it new existance required action appropriately referable to its own facts. At this time the .24 pairs of shoes included in order No. 23 had, over the insistent protest of defendants, just come to Bolivar and were taken and examined by defendants.

When the goods included in Order No. 23 came to Bolivar in the beginning of January, they were opened and examined by defendants with the result stated in their letters of the 11th of that month. This letter reiterated the withdrawal and cancellation of Order No. 24, expressed dissatisfaction with the attempt' to force the goods upon- them notwithstanding their cancellation of the order, stated that the goods did not conform in kind to the order, and that they would he returned. This was not done, Imt instead of returning them defendants on April 13th paid for them on condition that the payment of them and one other insignificant item should he in full of the account rendered, which included the amount now sued for. The plaintiff received and retained this money, notwithstanding such condition expressed in the letter transmitting it, and the question considered by the Court of Appeals in its principal opinion (199 S. W. 763) was whether or not such payment constituted an accord and satisfaction of the' claim in this suit. It held that it did. The theory was that the admitted facts, as we have stated them, show that at the time of that-payment the liability of the defendants upon the entire transaction was in controversy, and that by the acceptance of any part of it in satisfaction of the whole the remainder was extinguished. The dissenting opinion (199 S. 'W. 767.) stood upon the ground that by receiving and retaining* the goods shipped upon Order No. 23, that part of the claim had been separately liquidated biy defendants, so that the element of an accord was entirely removed, and the payment amounted only to the payment of a sum conceded to be due on an integral part of the account. .Considering this question' from the standpoint that there was but a single transaction involved in both claims, and that the. final appropriation of these goods was part of the composition of a very substantial defense which covered both items alike, it becomes a very interesting one, but in yiew of our holding-in the preceding paragraph that the transaction consisted of two separate and distinct . contracts involving distinct and separate facts, so that an action would not lie upon either for the breach of the other, we fail to see clearly the application of the principle so ably and interestingly discussed in the Court of Appeals, and leave it for consideration upon a clean sheet when it shall come before the court in a case' which involves it. i <

We hold that Order No. 24 on which this transaction is founded was the basis of a contract separate and distinct from the one which calls for a rush delivery; that it was countermanded and withdrawn before notice of acceptance; and that the defendants were clearly within their right under its terms in refusing to receive 'the shipment for which compensation is now sought. The facts upon which we have come to this conclusion being admitted in the record, we have no- choice but to affirm the judgment of the Polk County Circuit Court, which is done.

Ragland and Small, GO., concur.

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

All of the judges concur except Woodson, J., absent.