author: LAMM, J.

text:
    CHRISMAN v. LINDERMAN et al., Appellants.
    Division One,
    March 28, 1907.
    1. FEE .SIMPLE DEED: Part Payment: Mistake. It would be an intolerable reproach to the law to allow a purchaser, wdio has received a fee simple title absolute, to take the whole estate under the guise of paying for a part only, when such result was produced by an honest mutual mistake of fact, or an honest mistake of mused law and fact, or a mistaSfee of both or either bom of the fraud of the purchaser. Where the purchaser at the administrator’s sale obtained the fee simple title to decedent’s homestead, under the belief and understanding that it was subject to the dower of the remarried widow, and he did not pay for that, he must be compelled to do so.
    2. DOWER being a cherished and immediate jewel of the common law, all doubts as to its destruction by statute are to be resolved in its favor. Nothing except a plain mandate of the statute, or a statutory command deduced by necessary implication, will suffice to destroy dower.
    3. -: Homestead: Remarriage: Sale. Where the widow had ■ a homestead in all the land her husband owned at his death, and she remarries, and the land is sold for his debts, her dower is not thereby extinguished; and the sale of the land by the administrator under an order of court to pay debts, does not convey to tne purchaser her dower.
    4. -: -: Merger. The dower does not merge into the wife’s homestead. The law will not force a merger contrary to the interest of the widow.
    5. -: -: -: Statute: Assignment. The statute does not by its terms destroy dower where the homestead comprises all the real estate of which the husband died seized. It says that “no dower shall be assigned to such widow.” There is a difference between her dower estate, and its assignment. Dower is an estate vested by law; assignment is a remedy for segregating or marking out the estate. The Homestead Statute forbids the assignment of dower where upon assignment of homestead the homestead is greater than one-third of the real estate; but where the widow loses her homestead by remarriage, she can then assert her claim to dower. That estate was existent while the homestead existed, but its assignment was suspended because the homestead entirely overlapped it.
    6. -: -: -; — : -: Homestead Law of 1895. The Homestead Statute of 1895, by the language employed, makes the remarriage of the widow an annihilation of her homestead only, and the courts will not by construction extend it to the destruction of her dower also.
    Transferred from Kansas City Court of Appeals.
    Reversed.

      N. A. Franklin for appellants.
    A widow who remarries does not lose dower in her former husband’s lands. West v. McMullen, 112 Mo. 405; Westmyer v. Grallenkamp, 154 Mo. 28. But does a widow who remarries thereby lose and forfeit dower in lands of her former hnshand which was his homestead, and the only lands he possessed? A widow is endowed with the one-third part of all the lands whereof her hnsband died seized and possessed of an estate of inheritance, and the hnsband can sell his homestead subject to his wife’s inchoate right of dower. E. S. 1899, secs. 2933, 2935, 2936; Casteel v. Potter, 75 S. W. 597; Gladney v. Sydnor, 172 Mo. 318; Phillips v. Presson, 172 Mo. 24. Take a case like that of Gladney v. Sydnor, 172 Mo. 318, where it is specifically held that, under the homestead law of this State as amended in 1895, a homesteader has a vested estate in his homestead property, and can sell the same subject to his wife’s inchoate right to dower; if the husband by his deed can defeat both homestead and dower, then his widow is left in a worse condition than if no homestead law had ever been passed by the Legislature. Can it be that the Legislature by the homestead law of 1895 intended to- defeat the widow’s rights both to her homestead and dower at the same time? If the construction put on the pleadings by respondent be sound, then that very thing is accomplished, if the homesteader’s widow remarries. The last case cited specifically decided that the widow has the inchoate right to dower in her husband’s homestead; if that right is not complete on the death of the homesteader, when does it become consummate? In the case of Phillips v. Presson, supra, the same thing is decided in the same way. In that case it is held (citing statutes) that a widow who had deeded the land had three cognate rights thereto-, to-wit: quarantine, homestead and dower. It can surely make no difference that the homestead right of the minor children was stronger than the dower rights.

      Higbee & Mills for respondent.
    The widow took the homestead, the entire homestead in this case, during her life or widowhood. If the homestead equal or exceed one-third of the real estate, the widow has no dower. Burgess v. Bowles, 99 Mo. 547; Poland v. Vesper, 67 Mo. 727. Dower becomes consummate and is assigned according to the law in force at the husband’s death. Carey v. West, 139 Mo. 174; Broyles v. Cox, 153 Mo. 251. “The object of the law was to secure a home for the widow. ’ ’ To insure her support the law gave the widow the entire homestead in lieu of one-third. “In such case she can have no dower. ’ ’ Bryan v. Rhoades, 96 Mo. 4891; Gore v. Riley, 161 Mo. 245. Prior to” .1895, this was a life estate. Our lawmakers, however, became jealous of second husbands, and in their wisdom provided that when the widow remarried, she forfeited her homestead. She then had another husband to support her. And no statute provides, nor does the policy of the law require, that she shall have dower in lieu of the homestead she voluntarily forfeits by her remarriage. Having no dower, the widow had no quarantine. Casteel v. Potter, 75 S. W. 598,176 Mo. 84. Linderman agreed to pay $1500 for the fee; he induced plaintiff to believe that Mrs. House had dower in the land; he got a deed which conveyed the fee. He immediately discovered this fact, retained the deed and refused to pay the $254.25, which it was mutually agreed was the value of the supposed dower interest. This is a plain case of mutual mistake of fact as to the title to be conveyed, induced by appellant’s misrepresentation. It will not alter the complexion of the case to' call it mutual mistake of law and fact. It was a mutual mistake as to a title, which is a fact. When the mistake was discovered he refused to pay the full price of $1500', as agreed, and elected to hold title to the whole fee. Is it possible the plaintiff shall be obliged to sell the whole for what both parties intended should be the price of part only? Will appellant be permitted to retain the whole title with one hand and with the other withhold the price of the part he did not bargain to buy nor the plaintiff to sell? By electing to retain the fee he affirms the sale of the whole title, and equity will compel him to pay the agreed price therefor. Griffith v. Townley, 69 Mo. 13; Smith v. Patterson, 53 Mo. App. 72; Mich. Buggy Co. v. Woodson, 591 Mo. App. 558; Corrigan v. Tiernay, 100 Mo. 276; Summers v. Coleman, 80 Mo. 488. Equity will relieve against mutual mistakes as to legal rights. 1 Beach Mod. Eq. (1 Ed.), sec. 38; Bisp. Eq. (2 Ed.), secs. 187,188.
   LAMM, J.

Anthony Wishon • departed this life in Putnam county in 1898, leaving behind him a widow (Thirsey), a homestead and debts, but neither will nor child. The public administrator of said county, one Chrisman, unc[er orders of the probate court, took upon himself the burden of administering upon Wish-on’s estate. The widow remarried — her new yoke-fellow being Menzo House.

Presently thereafter said administrator commenced proceedings to sell the homestead to pay debts, which proceedings ripened into an order of sale, a sale and an approval thereof and an administrator’s deed in 1900 — defendant Linderman becoming the purchaser at an expressed consideration of $1,254.75. It seems the homestead comprised sixty-five acres of land, and it stands conceded that its value, as agreed on between Chrisman and Linderman, was $1,500.

After the administrator’s sale and deed a squabble arose between Chrisman, Linderman and the former widow, Mrs. House, over her right to dower; and this suit in equity resulted, whereby the administrator seeks to recover of Linderman $245.25, a sum said to represent Mrs. House’s dower right, it being* the difference between the sum paid by Linderman to the administrator and said actual value of the land. The suit resulted in a decree in favor of the administrator ip said sum, which amount was made a charge upon the land, and from that judgment Linderman appealed to the Kansas City Court of Appeals.

On the theory the title to real estate was involved, that court transferred the cause to this court.

Three petitions were filed by plaintiff. Defendant Linderman lodged demurrers against the first two, having for grounds that they did not state facts sufficient to constitute a cause of action. These demurrers were successively sustained. Thereat plaintiff filed a second amended petition. This in turn was challenged' by a pleading called in the record a motion to strike out. The motion, however, is a dual pleading. In so far as the grounds of the motion aver a departure from the original petition, it may be technically considered a motion to strike out. But the motion did not stop there; it took a further step and, assuming the office of a demurrer, challenged the-petition as not stating facts sufficient to constitute a cause of action. "Whether it be deemed a motion or demurrer, it was overruled and defendant excepted, and stood on his motion.

In this court it is argued by defendant’s learned counsel that the second amended petition states no cause of action. It is also argued that if it states any cause of action, it is a new and different cause of action from the one stated in the original petition — in other words, that the second amended petition, placed side by side with the original petition, shows a departure.

As we interpret plaintiff’s contention, it is, first, that there is no departure; and, second, that if departure there be, such departure arises in the first amended petition and not in the second amended petition — that is that the two amended petitions state the same cause of action; and if any vice of the character insisted upon by defendant exists, it can be seen only when the first amended petition is placed side by side with the original petition. And plaintiff goes further and seeks to avoid the force of defendant’s claim of departure by insisting that when a demurrer was lodged against the first amended petition, the effect of that form of pleading was to waive the departure, and, said departure being waived, the right to insist upon it (once lost) can not be revived.

These questions of pleading are learnedly discussed by counsel, pro and con; but in the view we take of the case, they are not decisive, and therefore need not be considered. .

Our notion is that the turning point in the case is in defendant’s main contention, to-wit: that the petition states no cause of action and that the court had no jurisdiction to enter the decree it did. The ultimate question involved in this contention may be formulated as follows: If a widow be vested with a homestead on the death of her first spouse (that being all the real estate of which he died seized), does she lose, not only her homestead, but also her dower, by a remarriage?

In order to show how the foregoing question arises on the record, it will be well to squeeze into a nutshell the constitutive elements of plaintiff’s cause of action as set forth in a voluminous bill. Thus:

After averring the facts hereinbefore set forth, it is alleged that on the death of Wishon his homestead vested in his widow, Thirsey, during her lifetime or widowhood, as her homestead, and that she had no dower therein; that she continued to occupy the homestead after the death of Wishon until she married Menzo House; that by her marriage she forfeited her homestead and all title in and to said premises; that after the order of sale by the probate court, and prior to the purchase by Linderman, he and the administrator opened negotiations for the purchase of the land at private, sale under the terms of the order; that Linderman believed, or pretended to believe, that Mrs. House had dower in the land, and stated such to be a fact to the plaintiff; that the widow did the same and was represented by an attorney who gave similar assurances; that plaintiff did not have the advice of counsel and believed said representations; that as the result of said negotiations, and moved thereto by said representations, it was agreed between plaintiff, Linderman and Mrs. House that the land was worth $1,500 and Linderman would pay that price; that the interest of the estate of Anthony Wishon in the land was valued at $1254.75, and the pretended dower at $245.25, and Linderman was to pay the first-mentioned sum to plaintiff and the latter sum to- Mrs. House, she and plaintiff agreeing to convey said respective interests to Linderman; that plaintiff reported the sale, the report was approved and he made his deed in accordance with the agreement, which deed conveyed all the interest and estate of deceased in the premises; that it was understood between plaintiff and Linderman that plaintiff was conveying and Linderman was acquiring by that deed the fee simple title, subject to the dower; but this was a mistake of fact, superinduced by plaintiff’s ignorance and by the aforesaid representations; that, in truth and in fact, plaintiff sold and conveyed the fee simple title absolute, subject to no dower interest-plaintiff thereby conveying and Linderman thereby receiving a greater interest than plaintiff intended to convey, or than Linderman pretended to believe he was receiving;, that if Linderman was honest in his representations, then the mistake was a mutual mistake of fact; but, if dishonest in his representations and beliefs, then he intentionally practiced a fraud upon plaintiff; that at once upon receiving plaintiff’s deed Linderman turned about and snapped his fingers at Mrs. House, claiming she had no dower; but that he had acquired the full fee from plaintiff by his administrator’s deed, and he thereupon refused to-, pay the widow said sum; that defendant is responsible for plaintiff’s mistake of fact relating to said dower and his belief in its existence, and thereby secured the fee simple title to said premises for the sum of $1,254.75, instead of for $1,500, which by the contract of sale he agreed to pay, and thereby wronged the estate of Anthony Wishon out of the difference. Wherefore, plaintiff prays judgment for said sum, and that the same be declared a lien, etc.

I. The foregoing sufficiently states the averments of the second amended petition; and when it is further stated that the case passed off below in such form that the allegations of the petition are to be taken as true because defendant stood mute, while plaintiff stated his paper case' to the foregoing effect, it will be seen that the matter is sufficiently developed to show that the question controlling the very right and justice of the case is whether or not Mrs. House has dower. If she has dower, then plaintiff is intermeddling and ought not to recover; for Linderman must settle with her. If, on the other hand, she has no dower, then plaintiff should recover; for it would be an intolerable reproach to the law to' allow a purchaser to take the whole estate under guise of paying for part only, when such result was produced by an honest mutual mistake of fact, or an honest mistake of mixed law and fact, or a mistake of both or either kind born of the fraud of the purchaser — and so it is written. [1 Beach, Mod. Eq. (1 Ed.), sec. 38, p. 37; Griffith v. Townley, 69 Mo. 13; Corrigan v. Tiernay, 100 Mo. 276; Summers v. Coleman, 80 Mo. 488; Smith v. Patterson, 53 Mo. App. 66; Needles v. Burk, 81 Mo. 569.]

II. The question presented is res integra; and at the very threshhold of its consideration it is pertinent to inquire what is the correct judicial attitude toward dower. To ascertain that attitude we may give heed to the pertinent maxims of the law; for, “A maxim,” says Coke, “is so called because its dignity is chiefest, and its authority the most certain, and because it is universally approved by all.” [Coke, Litt. 11 a.] Again lie says, “A maxim is a proposition to be of all men confessed and granted without proof, argument, or discourse.” [Id., 67 a.] “Maxims,” says Sir James Mackintosh, “are the condensed good sense of nations.” The rule (i. e., the maxim) measuring the force of legal maxims is: “In default of the law, the maxim rules.” (Regula pro lege, si deficit lex.) Referring to' dower, the maxims are: “The law favors dower; it is a reward of chastity, therefore it is to be preserved.” [Coke, Litt. 33a.] Again: “In doubt the response is in favor of dower, liberty, innocence, of the possessor, of the, debtor, and of the defendant.” [Brown Law Die. Appendix. In dubio pro dote, etc.] Again: “Law favoreth life, liberty, dower.” [14 Bac. 345.] Again: “"Where there is marriage, there is dower.” [Bract. 92.] And the converse: “No marriage, no dower.” [4 Barb. (N. Y.) 194.]

It may, accordingly, be justly said, we think, that the correct judicial attitude towards dower is this: Dower, being a cherished and immediate jewel of the common law, preserved for and presented to us in a statutory setting, all doubts are to be resolved in its favor; courts will not allow the right of dower to be wasted and frittered away in piecemeal by sour or austere construction, by overnice refinement in gloss. In short, nothing except a plain mandate of the statute, or a statutory command deduced by necessary implication, will suffice to set dower to one side. And this is so because dower, as seen above, keepeth excellent company in the law, to-wit: the company of life and liberty (the three abiding together in favor). So' that, the law lifts the light of a comfortable countenance thereon out of tender regard for the widow.

III. Nevertheless, dower may be lost. For instance, it being “a reward of chastity,” it was lost at common law by the wife’s adultery. Thus speaketh the oracle of the common law in that behalf: “A woman leaving her husband of her own accord, and committing adultery, loses her dower, unless her husband takes her back of his own accord.” [Coke, Litt. 32 b.] Declarative of the common law in that regard is our statute. [R. S. 1899, sec. 2953.] So, too', a woman is declared not to be endowed in case of a divorce secured by her husband for her fault or misconduct. [R. S. 1899, sec. 2947.] Moreover, she may lose her dower right on becoming sui juris by acts amounting to an estoppel in pais. [Hart v. Giles, 67 Mo. 175.] Furthermore, she may lose her dower by the Statute of Limitations. [Long v. Stock Yards Co., 107 Mo. 298; Null v. Howell, 111 Mo. 273.] She had no dower at common law in the war castle of her lord; hence, by analogy she has been held to have no dower in a railroad right of way — the public use in that regard standing as and for a warlike castle. [Venable v. Railroad, 112 Mo. 103; Chouteau v. Railroad, 122 Mo. 375.] She may bar her dower during her marriage by deed, executed jointly with her husband (R. S. 1899’, sec. 2946), and it goes without saying that she may convey away her dower after she becomes discovert. Absent any words evincing a contrary intent, at common law a devise of real estate to her in her husband’s will was in addition to dower. [Schorr v. Etling, 124 Mo. 42.] But the statutory rule is otherwise, and unless she by renunciation of the will avoids a devise of real estate made to her by the will of her husband, she is barred' of dower by such devise. [R. S. 1899, sec. 2949.] Certain options are given to her by the statute and she may elect to take a certain share in her husband’s estate under given conditions in lieu of dower — all of these elections, be it noted, involving a choice in her for the possible betterment of her estate. [R. S. 1899, secs. 2939 to 2945, inclusive.] So, too, her dower may be barred by an antenuptial contract entered into understandingly and supported by an adequate consideration. [R. S. 1899, sec. 2950.]

But it is not amiss in the consideration of the case at bar to note that in the absence of election, conveyance or other bar, as aforesaid, the manifest intent of onr statute on dower, as read in the lines and between the lines — that is, in the letter as well as in the very soul of the statute itself — is that the widow’s common law right of dower is to be kept inviolate; and that right is set forth in the first section of the Dower Act (R. S. 1899, sec. 2933), thus: “Every widow shall be' endowed of the third part of all the lands whereof her husband, or any other person to his use, was seized of an estate of inheritance, at any time during the marriage, to which she shall not have relinquished her right of dower in the manner prescribed by law, to hold and enjoy during her natural life.” [See Rev. Laws, 1825, vol. l, p. 332.]

In fact, dower seems to be dear as the apple of its eye to Missouri statutory law, as it was to the common law of our ancestors; and so it is provided that: “No act, deed or conveyance, executed or performed by the husband without the assent of the wife, evidenced by her acknowledgment thereof, in the manner required by law to pass the estate of married women, and no judgment or decree confessed or recovered against him, and no laches, default, covin or crime of the husband, shall prejudice the right and interest of the wife provided in the foregoing sections of this chapter,” — i. e., chapter 21 on Dower. [R. S. 1899, sec. 2946.]

We are now asked to hold that a widow’s dower right, a right she may guard and re-establish by a suit in equity during the lifetime of her husband, a right granted her, as seen, by the common law from a time when the memory of man runneth not to the contrary, and which (jealously preserved in statutory law during the whole life of the State of Missouri) the courts are quick to see and astute to aid, is lost by remarriage in every case where the real estate of which her husband died seized is of such modest amount that it also constitutes a homestead; for this conclusion the learned trial judge felt constrained to' draw by the interpretation placed by him upon the provisions of the homestead statute, presently to mss under review.

IV. The material provisions of the statutes relating to homesteads, referred to in paragraph three of this opinion, are sections 3620 and 3621, Revised Statutes 1899. Section 3620 reads as follows:

“If any such housekeeper or head of a family shall die, leaving a widow or any minor children, his homestead to the value aforesaid [$1,500] shall pass to and vest in such widow or children, or if there be both, to such widow and children, and shall continue for their benefit without being subject to the payment of the debts of the deceased, unless legally charged thereon in his lifetime, until the youngest child shall attain its legal majority, and until the death of such widow; that is to say, the children shall have the joint right of occupation with the widow until they shall arrive respectively at their majority, and the widow shall have the right to occupy such homestead during her life or widowhood, and upon her death or remarriage it shall pass to the heirs of the husband; and the probate court having jurisdiction of the estate of the deceased housekeeper, or head of a family, shall, when necessary, appoint three commissioners to set out such homestead to the person or persons entitled thereto.”

Section 3621 reads as follows:

“The commissioners appointed to set out such homestead shall, in cases where the right of dower also exists, also set out such dower, and they shall first set out such homestead, and from the residue of the real estate of the deceased shall set out such dower, but the amount of such dower shall be diminished by the amount of the interest of the widow in such homestead; and if the interest of the widow in such homestead shall equal or exceed one-third interest for and during her natural life, in and to all the real estate of which such housekeeper or head of a family shall have died seized, no dower shall he assigned to such widow.”

It will be seen that by section 3620 the homestead right passes to and vests in the widow or minor children, or in both, if both there be. It continues for her benefit during her natural life unless she remarries. If she remarries, her homestead ceases. [McKee v. Stuckey, 181 Mo. l. c. 722.]

It will be seen that under section 3621, supra, where both homestead and dower exist, the commissioners appointed to set out homestead shall also set out dower. But the two estates are .recognized as somewhat akin to each other. Hence, it is provided that the homestead shall be set out first and that the dower shall be diminished by the interest of the widow in the homestead and that “no^ dower shall be assigned to such widow” when the homestead equals or exceeds one-third interest for and during her natural life in and to all the real estate of which the housekeeper or head of the family died seized.

Our statutes establishing and setting metes and bounds to the purely statutory estate of homestead being in the foregoing terms, the argument of plaintiff’s learned counsel runs plausibly and shrewdly in this wise: the real estate of Wishon was his homestead —no more, no less. Now, the statute vests that homestead, eo instanti and ivill ye, nill ye, on his death in his widow; ergo, by operation of law her dower was swallowed up and lost in her homestead (i. e., all her eggs were placed in one basket). She marries House; ergo, her homestead is lost; and, her homestead being lost, all is lost.

But we are not persuaded that such argument is sound, nor that the conclusion drawn is sound. This is so, because:

(a) If the dower estate was merged into the homestead estate, then there would be great force in the argument that if the homestead was lost, such loss took with it the dower estate. But the rule at law relating to merger is stated to be: “That where a greater estate and a lesser coincide and meet in one and the same person in the same right, without any intermediate vested estate, the less is immediately annihilated, or, in law phrase, is said to be merged, that is, sunk or drowned, in the greater; and the same rule applies to the union of a legal estate with an equitable estate or interest, the latter being thereupon extinguished. After merger the greater estate, still subsisting, continues of precisely the same quality and extent of ownership as before, while the lesser with its characteristics is extinct.” [20 Am. and Eng. Ency. Law (2 Ed.), 588.]

The same standard authority states the rule relating to merger in equity as follows: {Id., 590): “In equity the legal rule of merger is not regarded as inflexible, and the question whether the doctrine of merger applies or not is determined by the intention of the party in whom the estates unite, provided that his intention is determined by the' party’s expressed declaration, or, where there is no declaration, or the party is not capable of electing as to merger, intention will be presumed in accordance with his interests as disclosed by an examination of all the circumstances of the case.”

It has been held that in equity estates are kept distinct when the interest of either party requires it; that merger is not favored in equity, and never takes place contrary to the intention of the parties, or the requirements of justice. [See a learned note on page 1234, vol. 4, Current Law. To the same effect are Hospes v. Almstedt, 83 Mo. 473; Sater v. Hunt, 66 Mo. App. 527; Danhouse’s Estate, 130 Pa. St. 256.] In Wallace v. Blair, 1 Pa. St. 75, it was held: “As the merger is for the benefit of him in whom the two1 estates unite, it will never take place when it is against his interest, or when it is most for his advantage to keep the charge alive. ’ ’ [See McLeery v. McLeery, 65 Me. 173; Jameson v. Hayward, 106 Cal. 682; Wettlaufer v. Ames, 133 Mich. 201.]

Applying the doctrines of merger to the facts in judgment, it cannot be said there was any merger of the homestead and dower interests. There being no expressed intention of the widow and the law alone creating the condition present, the law will not force a merger contrary to the interest of the widow. We do not have to decide that the homestead estate is superior to the dower estate for the purposes of merger. Such estate may in a given instance be superior in quantity, but it would seem to be inferior in quality, because the homestead is determinable by marriage, whereas dower is determinable by death. The two events being dissimilar in essence, the one rests in caprice, the other in necessity. All we are obliged to hold, and what we do1 hold, is that it was not to the interest of the widow to force a merger of the two estates which met in her, and, hence, no merger will be presumed.

(b) But plaintiff insists the homestead statute, ex pi termini, destroys dower where the homestead is greater than one-third of the real estate of which the husband died seized. But we do not so read the statute. It does not say {in totidem verbis) that in such ease the widow shall have no dower, or that her dower is lost. The language of the • statute is (sec. 3621, supra) that under such circumstances “no dower shall be assigned to such widow.” Now, dower is an estate vested by law, inchoate during the life of the husband and cast upon the widow upon his death; while the assignment of dower is defined thus: ‘ The assignment of dower is ascertaining a widow’s right of dower by laying out or marking off one-third of her deceased husband’s lands, and setting off the same for her use during life.” [Black’s L. Die.] Thus it appears that dower is one thing and the assignment of dower is essentially a different thing. One is an estate, the other smacks of the remedy for segregating the estate. When the statute, therefore, says that no dower shall be assigned, it falls far short of saying that the widow’s right of dower is lost or drowned in a greater estate.

In our opinion all the statute means-is this: given a homestead greater in extent than common law dower, then the courts shall remain passive and refuse to assign, that is, admeasure and mark off the dower interest while the homestead exists in the widow. To mark out dower in the homestead in such case would be a vain and useless thing. Albeit, the dower right is left, but left latent merely — covered up, as it were, and its assignment cannot be enforced in the homestead while the widow’s homestead exists. But, if we may be allowed a trope-, as the stars come out when the sun goes down, so- when such homestead right disappears, the right to assignment of dower reappears — suspended during widowhood, it revives again on remarriage, at the precise time assignment of dower would have any meaning or vitality in the case in hand. Certain it is that a woman takes dower in accordance with the law in existence when her husband dies. Certain it is that the Legislature may legislate in regard to dower. But, as said, our Dower Statute should not be held as subject to repeal by anything short of express repeal, or repeal by inexorable implication. The Homestead Statute and the- Dower Statute are not antagonistic to each other, but they must be construed together. No provision in either should perish by construction unless there is no reasonable escape from such construction. In the case at bar the provisions, of the Dower and Homestead statutes pertinent to the issues may be construed harmoniously ■with each other, and we adopt the construction that dower continues to exist in the homestead, but the widow’s right to its assignment was suspended during the existence of a homestead estate entirely overlapping it.

(c) But it is further argued by plaintiff’s counsel that the homestead statutes' have been construed as contended by them, and adversely to the foregoing view. Plaintiff’s counsel put their finger on several cases which they say support their view; for example, Bryan v. Rhoades, 96 Mo. 485. A close reading of that case will show that the exact point here was not in judgment there. It is said there that “if the widow’s interest in the homestead equals or exceeds, in amount, dower in the entire estate, then she can have no dower.” The action was for the assignment of dower and the setting off of a homestead, and all necessary for the court to' say, and what it meant to say, was that in such condition of things there can be no assignment of dower. We are cited to the case of Gore v. Riley, 161 Mo. 238. In that ease an attempt was made to have us say that as the minor children had an interest in the homestead with the widow, each was entitled to a certain or definite part for the time each should have it, and that such interest has a fixed value; so that, when the homestead was set off to the widow and minor children, the widow’s interest should have been computed as diminished by the interests of the minor children and enough more land added to her homestead interest (as computed) to have made up one-third of value in the whole real estate. Por reasons suggested by Burgess, J., this court refused to follow that lead, and, arguendo, Bryan v. Rhoades is quoted from. There is nothing in that case that militates against the conclusion we have heretofore announced. The same may be said of the other cases relied upon.

As tending to show the astuteness which courts evince in protecting the interests of widows, attention may he called to a line of decisions construing section 3621, supra, wherein the widow elected under the Dower Act to take a child’s part in lieu of her common law dower; and these cases, when closely read, will be found by parity of reasoning to sustain the argument advanced in this opinion. For instance, in Adams v. Adams, 183 Mo. 396, it was held that a widow who has elected to take one-half of the estate of her deceased husband absolutely, subject to his debts, is entitled in addition to a homestead in the other-half of the land. In other words, section 3621 was held to apply solely to- common law dower and not to the estate which the widow may elect to take in lieu of dower, which has been aptly called “election dower.” To the same effect is McFadin v. Board, 188 Mo. 688, and Quail v. Lomas, 200 Mo. 674 See, also, Casteel v. Potter, 176 Mo. 76.

(d) Finally it is argued that when the Legislature in 1895 (Laws 1895, pp. 185-6) amended the homestead law so as to make the widow’s homestead right determinable on her remarriage, the gist of the legislative object was hostility to the remarriage of widows; and the argument seems to be that the courts should further that object by making the punishment for her remarriage as severe as possible, and, to that end (in terrorem), should strike down both dower- anct homestead. Whether the Legislature was actuated by so ungallant a motive, or no, is not for us to inquire or decide. Suffice it to say that courts get at the legislative intent through the language employed to' evidence that intent. The language employed is alone directed to- an annihilation of the homestead estate. It may have been in the legislative mind that a new object of adoration should not be installed in the old: home — that the children of a decedent sharing that home should not be ruled over by the alien hand of a stepfather, who, per adventure, might waste the substance of the estate and render the widow less able to support and educate the children of decedent, or exhaust the fountain of love singular to them. Courts have not hesitated to enforce provisions of wills making a devise to the widow void in case of her remarriage. See Dumey v. Schoeffler, 24 Mo. 170; and many other cases might be cited to the same effect, so that, in accordance with the legislative will, courts should enforce the present homestead law whereby the widow loses her homestead in case of her remarriage. But, while not lagging behind, we will not be hurried by construction into running in advance of the written law; and it will be time enough to' hold, when the Legislature says so without equivocation or doubt, that a widow loses her dower right by remarriage. That is to say, if a widow is to be thus stripped because (peradventure) she pays a tribute to the virtues of her first husband by seeing his similitude in a second, or, contra, because (as sourly put, in substance, by Doctor Johnson) she allows Hope to triumph over Experience by taking a second, then, such effect must be produced by a stroke of legislative, rather than judicial, power.

The widow of Wishon has dower in the real estate in question, and, therefore, plaintiff' as administrator of the estate was not entitled to recover the value of that dower to pay debts. This being so, the judgment is for the wrong party, and is, therefore, reversed.

All concur, except Woodson,, Jnot sitting.


source: Caselaw Access Project

author: ORA VES, J.

license: Public Domain

text:
    MARY HARDING v. PHILIP BEDOLL, LUCY BEDOLL and WILLIAM R. ALLEN, Plaintiffs in Error.
    Division One,
    March 28, 1907.
    1. ABSTRACT: Rules of Court: Application and Construction.. The rules of the court in reference to'the contents of an abstract and time of filing and serving the same are reasonable, easily to be followed and are to be applied without respect to the case or person, and while they have been and will continue to be liberally construed, yet the construction should not be so liberal as to annul them, nor can the court give a strained construction of them in one case and a more liberal one in another.
    2. -: Contents. The abstract, as applied to the record, must be complete enough to show that the questions presented for review have been properly preserved in the case. Applied to the record proper, it does not mean that, the entire pleadings must be set out, unless some question urged requires that, but it does mean that it should show, that pleadings were filed in some lower court at some particular time, and their character, so that the issues raised may be readily ascertained therefrom; and that it show the judgment or a concise statement thereof, its date, the fact that a motion for a new trial or in arrest had been filed and the time thereof, so that the court may see that it was filed within the four days prescribed by statute; and'that it show the overruling of said motion or motions, leave to file a bill of exceptions, the approval and filing of said bill according to the order of the court, and the filing in proper time of the transcript in the appellate court. It is not necessary to print these orders and record entries in the abstract in haec verba, but the abstract thereof or abridgement of the record should show every material fact necessary for a complete understanding of the case.
    3. -: Resort to Record. An abstract which does not make a resort to the record unnecessary is insufficient.
    4. -: Filing Motion for New Trial. An abstract which simply says, “Within four days after the rendition of said judgment defendants filed the following motion for a new trial,” with nothing more, is insufficient. It cannot be determined therefrom whether or not the motion was filed during the same term of court.

      5. -: Copy of Record. It is not necessary that a copy of the record he printed in the abstract, but the record entries should be so abstracted as to show a continuous and connected history of tbe case, and that tbe appeal was taken in tbe time prescribed by law.
    6. -: Overruling Motions. An abstract which does not state when or at what term tbe motions for a new trial and in arrest were overruled is insufficient.
    7. -: -: Reference to Transcript. Tbe court will not refer to tbe transcript to ascertain when the motions for a new trial and in arrest were filed, or whether or not in term time, or when overruled, even though tbe transcript be a complete one, and tbe transcript is cited in tbe abstract.
    8. -: Judgment. Where tbe form of tbe.judgment is not itself in issue upon appeal, it is not necessary that tbe judgment be set out in full; it is better that it be so abstracted as to give the court all necessary information in regard thereto, such as, a judgment record, tbe date and term of its rendition, the substance thereof, etc.
    9. -: Bill of Exceptions. Where tbe abstract does not show a bill of exceptions approved by tbe judge of tbe trial court, or whether or not one was filed, or if filed whether filed by order of court, it is insufficient.
    10. SUPPLEMENTAL ABSTRACT. A supplemental abstract, filed out of time and without leave of court, is unavailing to cure tbe defects in a wholly insufficient abstract filed and served in time. If filed without leave of court, it will not be considered. Nor should such leave be granted after tbe respondent has served bis brief or other writing calling attention to defects in appellant’s first or original abstract.
    11. -: Motion for New Trial. A supplemental abstract -which shows no record entry of the filing or overruling of the motions for a new trial and in arrest, and tbe most that can be said of it is that it shows memoranda from which upon a proper application a proper nunc pro tunc order could have been obtained, even if filed in time and after leave, is insufficient.
    12. -: -Matters of Record. Tbe filing of tbe motions and tbe action of tbe court thereon must appear from tbe record proper; it is not sufficient that tbe bill of exceptions contains recitals of their filing.
    Error to Butler Circuit Court. — Hon. James L. Fort. Judge.

      WbII OB ERROR DISMISSED.

      Geo. Bullock for plaintiffs in error.

      Dinning £ Dinning for defendant in error.
   ORA VES, J.

With the view we have of this case a short statement will suffice. Action by plaintiff against defendants in ejectment. Defendants Bedolls answer by general denial. Defendant Allen by general denial and a plea of adverse possession for ten years. Replication, a plea of former adjudication of Allen’s alleged title of adverse possession, in a former action, the details of which would be useless here. Plaintiff had judgment in the lower court, the circuit court of Butler county, and within the year defendants, sued out their writ of error here. Defendants, now plaintiffs in error, have filed what they call an abstract of record. They likewise filed brief and argument, in which the merits of the case are fully discussed. Plaintiff, now defendant in error, urges the, insufficiency of this abstract of record filed herein. The insufficiency of the abstract is thus challenged in the following assignments:

“For the reason that said abstract does not contain a copy of the order of the circuit court of Butler county, filing plaintiffs, in error’s motion for a new trial.

“Because said abstract does not contain a copy of the record of the circuit court of Butler county, overruling plaintiffs in error’s motion for a new trial.

“Because said abstract does not contain a copy of an order of the circuit court of Butler county, filiug plaintiffs in error’s motion in arrest of judgment.

“Because said abstract does not contain an order of the circuit court of Butler county, overruling plaintiffs in error’s motion in arrest of judgment.

“Because said abstract, does show on page 32 thereof that the circuit court of Butler county, Missouri, did render a judgment in favor of this defendant in error and against the plaintiffs in error for the possession of the land in question, with one cent damages and monthly rents fixed at $2.50, and an execution ordered to place plaintiff in possession of the premises.

“Because said abstract does not show that plaintiffs in error ever had a bill of exceptions signed by the judge of the circuit court, who tried this cause, nor does said abstract show an order of the circuit court filing a bill of exceptions in this case.”

Defendant in error files an elaborate brief upon the question of the insufficiency of the abstract. After the service of this brief by defendant in error, plaintiffs in error, two days before the argument of the case, serve and file what is denominated, “Supplemental Abstract and Reply Brief of Plaintiffs in error.” As to the motion for new trial, this additional abstract says:

“Within four days after the rendition of said judgment, to-wit: On the 12th day of June, 1903, plaintiffs in error filed their motion for a new trial, which has endorsed thereon, the following: ‘Filed June 12th, 1903, L. M. Henderson, circuit clerk.’

“Said motion for new trial coming on for hearing, the following entry appears of record on the motion docket of the circuit court of Butler county, at page 58:

Attorneys.

Case No.

Parties.

Character of Motion.

Date.

L. F. Dinning Henry W. Allen and Geo. Bullock.

No. 52

Mary Harding Philip Bedoll et al

Motion for New Trial

Overruled. 6-19-03”

A similar showing is made as to' the motion in arrest of judgment. The final entry as to the alleged filing of a bill of exceptions in the case is in this language :

“At page 324 of said miscellaneous record, appears the following entry:

“ ‘Mary Harding v. Philip Bedoll et al., No. 52.

“ ‘Now, on this, the 25-th day of January, 1904, comes Geo. Bullock, attorney for the defendants herein, and files his bill of exceptions, in the above-, entitled cause:’ ”

In the instrument first filed as an abstract of record it nowhere mentions the filing of a bill of exceptions. In fact, the words “bill of exceptions” nowhere appears in the document. This sufficiently outlines the situation for a proper consideration of the contention made that the writ of error should be dismissed or the judgment affirmed, on account of the failure to file such an abstract of record as required by the rules of this court, promulgated under the statutes.

The question of what is a proper abstract of the record is becoming so- frequent of late that an excuse is furnished for this opinion, taking up in detail the delinquencies charged to this abstract. The rules of the court were established for the speedy and orderly disposition of its work. They are reasonable, and if examined by counsel, can readily be followed. The constructions of the rules have been very liberal, but should not be made so liberal as to- annul the rules themselves. Nor can the court give a strained construction in one case and a more liberal one in another. The application of the rules, as made by the courts, is without respect to the case or the person. In some instances, neglect or oversight of counsel may work a hardship upon clients, but this case can furnish no- reason for the construction of the rules such as should practically annul them. These rules apply to all persons, all cases and all representatives of clients, alike, and must be construed in one case just as they have been or will be in another, irrespective of the case, the parties or their counsel.

What is an abstract of the record and what should it contain under our rules? Speaking generally, it is said: “As a noun the word ‘abstract’ denotes a less quantity containing the virtue and force of a greater quantity.” [1 Cyc. 211.]

As applied to a record it would mean a complete history in short abbreviated form of the case as found in the record. It would have to be complete enough to show that the questions presented for review have been properly preserved in the case. As to. the record proper it would' not mean that the whole pleadings should be set out, unless some question urged required it. It would mean, however, that there should be a showing to the effect that pleadings had been filed in some lower court at some particular times, and the character of such pleadings, so that the issues raised could be easily ascertained. It would likewise mean that there should be a concise statement of the judgment and the date of its rendition and also of the fact that a motion for new trial or in arrest of judgment had been filed, and the time thereof so that this court can see that it is filed within the four days prescribed by the statute. By this we do not mean that a copy of the record entry showing the filing of the motion should be printed, but as an abstract thereof it could be said: “And thereafter at the same term of court and within four days after the return of said verdict or rendition of said judgment, to-wit, on---day of ---, 190 — , the defendant (or plaintiff) filed his motion for a new trial, as shown by the record entry made at the time.” Even this might be further abbreviated so as to aver and show the same facts.

So also should be the showing as to the overruling of such motion, the leave to. file bill of exceptions, filing of bill of exceptions, the affidavit for appeal, and the order granting the appeal. Later, by appropriate statement, should appear the filing of the ease in this court. In all this it is not necessary to print in 1laec verba the orders of the court, hut enough to show the act and that it is of record, as an order, decree or judgment of court. In 3 Cyc., p. 78, the rule is. thus announced:

“With regard to the matters properly included in an abstract of the record it may be stated, as a general rule, that such abstract should be literally an abstract, or abridgment, of the record, containing only so much thereof as is necessary to a full understanding of the questions presented for review. It should be as brief as possible so long as all material matters are presented, and an abstract which does not comply with this rule to a sufficient extent to obviate the necessity of a resort to the record is insufficient. Whatever is relied upon as an error should be shown, and an appellant’s abstract will, as against him, be deemed sufficiently full and accurate to present all the errors on which he relies. The abstract should not, however, contain matters wholly immaterial and unnecessary in aiding the reviewing court to determine the appeal.”

This statement is supported by a large number of Missouri cases cited by the text-writer. Now weigh- ' ing the abstract in question by the scales thus erected, how stand the contentions of parties'? These in their order.

I. The first contention is: “For the reason that said abstract does not contain a copy of the order of the circuit court of Butler county, filing plaintiffs in error’s motion for a new trial.” The record shows the judgment in full which appears to' have been entered on June 12th, the eleventh day of the June term of the Butler Circuit Court for the year 1903. Then follows this language:

“Within four days after the rendition of said judgment defendants filed the following motion for a new trial:”

From this the motion might have been filed at the same term of the judgment, or it might have been filed later. We can take knowledge of the beginning of a term of court, but not of its ending. It may be in session one day or longer. The four days mentioned in this abstract might he during the term or it might not be' during the term. We are not required to go to- the transcript of the record to determine this fact. Neither are we required to presume that it was during the term. The abstract should so show. It follows that this contention of the defendant in error is well founded.

II. The next contention is as to the condition of the motion in arrest of judgment. This is precisely upon the same footing as the motion for new trial. The contention in each case is that the abstract does not contain “a copy of the record.” We have said that this was unnecessary, provided such record entry was properly abstracted so as to show the facts. And in sustaining these contentions, we do not place it upon the ground that there has not been printed “a copy of the record” but because such record entries have not been so abstracted as to show the necessary facts to make a continuous and connected history of the case. As indicated in the first part of this opinion these record entries can be abstracted in a short paragraph,-so as to show all the facts.

What has been said as to the condition of the filing of these motions applies to a great extent to what is said as to their being overruled. Thé abstract on that question simply says: “Both of said motions were by the court overruled, to which rulings defendants excepted and saved their exceptions.” Nothing is said as to when or at what term of the court this action was taken. All these things should appear in the abstract. We are cited to the transcript it is true, where perhaps this information does appear, but we have continuously held that we will not go to the transcript. [Halstead v. Stone, 147 Mo. 649; Walser v. Wear, 128 Mo. 652; Brand v. Cannon, 118 Mo. 595.]

Nor is the rule different although there he a complete transcript filed and appeal taken "by the long method. [Whiting v. Lead Co., 195 Mo. 510, and cases cited; Vandeventer v. Goss, 190 Mo. 239.]

This and what is said under paragraph one above disposes of the 1st, 2nd, 3rd and 4th contentions of defendant in error and in favor of said defendant in error.

TIT. The next contention goes to the sufficiency of the abstract as to the judgment. Upon this point the abstract says: “Under the declarations of law, given, as aforesaid, the judgment was for the plaintiff and against the defendants, and was as follows: ‘Be it remembered that heretofore, to-wit, on Friday, June 12th, the same being the 11th day of the June, 1903, term of Butler county circuit court, the following, among other proceedings were had, to-wit: ’ ” Then follows the full judgment even to the style of the ease. This we think is sufficient. The' only thing that could be said is that the judgment might have been so abstracted as to have given this court the same information in less than one-fourth the space. It is an ordinary judgment in ejectment and counsel could have ■said in the abstract: “Upon the trial of said cause before the court, without the intervention of a jury, the court .at the June term, 1903', of said court, and on the 11th day of said term, made and entered its judgment of record by which it found the issues for the plaintiff and against the defendants, and that plaintiff was entitled to the possession of the premises in dispute, assessing her damages at one cent, and fixing the monthly rents at $2.50, and directing execution thereon.” ■

The foregoing would have given the court all the necessary information. It shows a judgment of record. It shows the date and term of its rendition. It shows the substance thereof. "Where the form of the judgment itself is not an issue upon appeal, the foregoing is ample. However, we cannot hold the abstract insufficient upon the question of the judgment and this contention is ruled against defendant in error.

IY. The last contention is that the abstract is insufficient “because said abstract does not show that plaintiffs in error ever had a bill of exceptions signed by the judge of the circuit court, who tried this cause, nor does said abstract show an order of the circuit court filing a bill of exceptions in this case.”

This contention is well taken. From cover to cover the words “bill of exceptions” cannot be found in this alleged abstract. Nor is there anything which could be construed to mean “bill of exceptions.” Not a word whether such document was signed by the trial judge, and by order of record, filed, or not. As to whether there was a bill of exceptions signed, by whom signed, filed or by whom ordered filed, we are left wholly in the dark. Upon this point the abstract is wholly insufficient. A bill of exceptions is a part of the record when signed by the trial judge and by him ordered filed, but there should be a record entry showing the filing thereof, and this record entry should be properly abstracted so as to show the facts. That the bill of exceptions has been made a part of the record must come from the record proper and1 not from the recitals in the bill itself. [Hill v. Butler County, 195 Mo. l. c. 514; Bick v. Williams, 181 Mo. l. c. 527; Daggs v. Smith, 193 Mo. l. c. 499.]

The alleged abstract therefore shows no bill of exceptions.

Y. Next in order, we reach the “Supplemental Abstract. ’ ’ First, it was filed out of time and without leave of court. Then further upon the question of a motion for new trial and in arrest of judgment being filed it is wholly insufficient. It shows no record entry of the filing or overruling of these motions. The most that is shown is that there are memoranda in the clerk’s office and upon the docket of the court, from which upon proper application a proper nunc pro tunc order could he obtained.

As to the filing of the bill of exceptions, this supplemental abstract s,ays:

“At page 324 of said miscellaneous record, appears the following entry:

“ ‘Mary Harding vs. Philip Bedoll et al., No. 52.

“ ‘Now on this, the 25th day of January, 1904, comes Geo. Bullock, attorney for the defendants herein, and files Ms bill of exceptions, in the above-entitled cause.’ ”

This might be construed to mean that defendant’s bill of exceptions was then filed, but the record is awkwardly worded and might just as well be construed to mean what it in words says, that George Bullock filed his bill of exceptions.

However, we do not desire to split hairs in interpreting the language of the record entry. The real objection is that the abstract comes too late and shows no filing of the motion for new trial. As to the motion this supplemental abstract simply shows memoranda from which the proper record by mine pro tunc order could be made to appear. The filing of the motion and the action of the court therein must appear from the record proper. In the recent case of Hogan v. Hinchey, 195 Mo. l. c. 533, Valliant, J., says:

“In the abstract of the record proper in this case it does not appear that there was a motion for a new trial or that such a motion was overruled. There are recitals to that effect in the bill of exceptions, but that is not sufficient; the filing of such motion and the ruling of the court upon it can be shown only by the record proper.”

The real question on this supplemental abstract is that it cannot he permitted. In the case of Bank of Tipton v. Davidson, 40 Mo. App. l. c. 423, Gill, J., states the rule of practice thus:

“The appellant or plaintiff in error, too, must set out the portion of the record relied on in his first, or original, abstract. He cannot fail or refuse to furnish such abridgment or abstract in the first instance, and then after respondent shall suggest in his brief such failure, cure the defect by a so-called supplemental abstract. [Cuomo v. City of St. Joseph, 24 Mo. App. 567.]”

And in the later case of Hoffman v. Loudon, 96 Mo. App. l. c. 188, the reasons are stated by Smith, P. J., as follows:

“Ever since the ruling in Bank v. Davidson, 40 Mo. App. 421, we have constantly held that where the appellant or plaintiff in error fails, in his original abstract, to set forth such parts of the record as shows jurisdiction, a valid bill of exceptions, and so much of the record as is necessary to a full understanding of the questions presented for decison, he cannot, after the respondent or defendant in error has suggested in his brief such failure, be permitted to cure the defect by a supplemental abstract without the consent of the respondent or defendant in error. Any other practice most obviously would lead to the most mischievous consequences and would be intolerable. The additional abstract filed by appellant, under the circumstances already referred to, should, we think, be disregarded. ’ ’

In the very recent case of Everett v. Butler, 192 Mo. l. c. 569, Gantt, J., says:

“Neither do we hold that there may not be amendments to an abstract under proper circumstances for good cause shown, but when an abstract, as in this case, utterly fails to comply with the law not only in immaterial but in the most 'material respects, and counsel for the respondent or defendant in error have availed themselves of their right to object to the same, and have been at the expense of printing their briefs, to hold that counsel for the appellant may then, within three days of the date set for' the argument of the case, so change the abstract as to present a wholly different state of the record, would be to encourage negligence on the part of counsel and to punish the diligent counsel by exacting of them the printing and preparation of entirely new briefs, - and oftentimes counter-abstracts of record.”

The foregoing seems to be the rule as to supplementary abstracts of record. To say the least they should not be filed without leave of court and if so filed will not be considered. We will add further that if for any reason the original is so faulty in stating material matters of record as to authorize the sustaining of suggestion to dismiss the appeal or writ of error, no leave should be granted after the opposite party has served his brief or other writing calling attention to the defects. To hold otherwise, would, as Judge G-antt practically says, place a premium upon negligence in the preparation of abstracts.

It therefore follows that the writ of error should be dismissed and the dismissal thereof is ordered.

All concur.


author: WOODSON, J.

text:
    JOHN T. MILLIKEN v. THYSON COMMISSION COMPANY, Appellant.
    Division One,
    March 28, 1907.
    1. EVIDENCE: Parts of Answer: Admission. Where the petition by general allegations charged that defendant between certain dates bought and sold for plaintiff 150,000 bushels of wheat, and defendant in its reply set up the purchase of that amount of wheat naming the parties from whom it was bought and how it was sold, not for the purpose of admitting that they constituted the transactions between the parties, but for the purpose of showing what were the real transactions, it is error to permit plaintiff to offer in evidence so much, of defendant’s answer as, alone, constitutes an admission that defendant had bought and sold 150,000 bushels of wheat for plaintiff and on his account. It is error to permit plaintiff to select isolated portions of the answer and read them to the jury, when the whole answer taken together shows that its object and purpose were to deny, not to admit, the allegations of the petition.
    2. -: Purchase and Sale of Wheat: Demurrer. Where the foundation of plaintiff’s cause of action is that he authorized defendant commission company to buy so much wheat for him at a given price and to sell it at another price, and that defendant did buy and sell it for him at those prices, and that defendant in consequence is liable to him for the specified profit, the court should sustain a demurrer to plaintiff’s case if he offers no evidence tending to prove the purchase and sale of wheat by defendant for him in the manner alleged in the petition.
    3. PRACTICE: Peremptory Instruction for Plaintiff. Even though plaintiff produces evidence tending to support his cause of action, if the allegations of the petition are denied and evidence is introduced to sustain the issues joined, it is error to give a peremptory instruction directing the jury to find for plaintiff. The rule is, in such case, that defendant is entitled to have the jury pass upon the evidence, though defendant offer no evidence on the subject.
    Appeal from St. Louis City Circuit Court. — Eon. John A. Blevins, Judge.
    Reversed and remanded.

      Chester H. Krum for appellant.
    (1) It was manifest error to admit in evidence the portion of the answer of the appellant, which the court permitted to he read. 1. The petition alleged the respondent’s cause of action as follows: “July 14, 1903, plaintiff employed defendant through its said representative to buy for plaintiff as his agent one hundred and fifty thousand bushels of No. 2 red winter wheat, to be delivered in the month of December, 1903, under the rules of said Merchants’ Exchange of the City of St. Louis. Defendant accepted said commission and executed the same by buying for plaintiff’s account said one hundred and fifty thousand bushels of wheat on the floor of the Merchants’ Exchange in St. Louis, and reported the said purchases to plaintiff.” This averment thus limited to a purchase, and only a purchase, was specifically denied. 2. The petition alleged a purchase of grain or purchases aggregating one hundred and fifty thousand bushels.. The transaction was a purchase pure and simple, according to the petition. This averment was specifically denied, and that part of the answer which was permitted to be read was merely preliminary to or part of a statement of the real transaction — namely, a spread between St. Louis and Chicago — buying a certain quantity of grain in St. Louis for December delivery and selling the same quantity in Chicago, at the same time, for May delivery. By the performance indulged in, respondent was permitted to proceed upon a theory wholly inconsistent with the cause of action, thus ignoring and cutting out features of the real transaction upon which appellant depended by way of defense. (2) The evidence of Corwin H. Spencer as to what is meant by “ringing out” contracts was wholly incompetent. This evidence had no bearing upon the cause of action sued on. Its admission was merely another step in the substitution of a different cause of action. (3) Upon no' theory was a peremptory instruction to find for respondent justified under the issues. 1. The petition averred a purchase, or purchases aggregating 150,000 bushels of wheat, and only such purchase. It averred that this purchase without any. accompanying or qualifying feature was the entire and sole transaction. This was specifically denied. 2. The statement in the amended answer was conditioned solely upon the real transaction. The case was determined, by the instruction, in defiance of the express traverse— thus being in full keeping with the confused procedure of framing an issue upon a cause of action alleged in the petition and' concluding a defendant from defending, because of a new and different cause of action set up in the reply. Appellant was certainly entitled to go to the jury upon the issue whether appellant had afforded respondent the cause of action stated in the petition.

      Judson & Green for respondent.
    (1) There was no departure in the reply and no objection was made to the filing of the reply. The petition was not based upon purchases alone, as stated in defendant’s brief, but upon the purchase of 150,000 bushels of No. 2 red winter wheat by defendant for plaintiff for December, 1903, delivery, and the sale of the same wheat on plaintiff’s order, which wheat was actually delivered in December according to contract, and the sale price actually collected by appellant. The answer made a futile attempt to becloud this simple transaction, and the simple relation of principal and agent on which it is based, by attempting to confuse it with certain other trades made by defendant for plaintiff in the Chicago market, which had been closed and settled as to plaintiff, and had no connection whatever with the transaction in suit. In this effort to confuse the transaction, defendant set out the “ringing out” allowed by the exchange to the brokers in adjusting contracts made in their own names as between themselves. Plaintiff therefore in his reply set out the terms of the rule under which this practice was allowed. There was in this no departure, but a simple explanation of the methods of business whereon ' defendant relied to evade his responsibility as an agent to his principal. But it is really unnecessary to consider the question of departure, because there is not in the record a particle of evidence even tending to show that the defendant did in fact “ring out,” or close under the rules of the Merchants’ Exchange, the contracts for the purchase of 150,000' bushels of wheat admitted in its amended answer to have been purchased by defendant for plaintiff between July 14th and August 12, 1903. The burden of proof as to “ ringing out” these purchases was upon defendant, and no evidence whatsoever on that subject was offered by either plaintiff or defendant. Therefore, there being no evidence to support these allegations of new matter in defendant’s answer, the only issue before the jury was whether defendant had made. the purchases and sales of wheat for plaintiff, claimed to have been made in the petition and at the prices therein specified, and as these purchases and sales were all admitted in the answer to have been made by defendant, the court properly directed a verdict. (2) It was a proper case for a directed verdict for plaintiff. There was no possible room for anything else. The purchases by defendant for plaintiff’s ' account, wherefor defendant charged, plaintiff the regular commission, were admitted. The sales of the same quantity of wheat for same delivery by defendant on plaintiff’s order and at plaintiff’s cost were also admitted. It was also admitted that defendant actually delivered this wheat and collected the money therefor. No attempt was made to controvert this testimony; Mr. Milliken was not even cross-examined; so practically the whole case stood admitted.
   WOODSON, J.

This is • an appeal from the judgment of the circuit court of the city of St. Louis, in favor of the respondent, for the sum of $10,540.78, growing out of certain transactions on the floor of the Merchants ’ Exchange of the city of St. Louis.

In order to fully understand the questions involved in the case it is necessary to set out the pleadings.

The petition is as follows:

“Plaintiff states that defendant, the Thyson Commission Company, is a general business corporation, organized under the laws of Missouri, and at the times of the transactions hereinafter stated was engaged through its representative, one John Thyson, in the business of selling grain on the floor of the Merchants’ Exchange in the city of St. Louis.

“Plaintiff for his action states that heretofore, to-wit, on July 14, 1903, plaintiff’ employed defendant through its said representative to buy for plaintiff as his agent one hundred and fifty thousand bushels of number 2 red winter wheat to be delivered in the month of December, 1903, under the rules of said Merchants’ Exchange in the city of St. Louis. Defendant accepted said commission and executed the same by buying for plaintiff’s account said 150,000 bushels of wheat on the floor of the Merchants’ Exchange in St. Louis, and reported the said purchases to plaintiff. Thereafter, on November 20, 1903, plaintiff ordered defendant to sell the said wheat so purchased for his account, and defendant executed said order of sale and sold said wheat for defendant, realizing therefrom a net profit over and above said purchase price of $10,381.25, which said profit defendant realized as plaintiff’s agent and for plaintiff’s account as will appear from the statement of said account herewith filed and made a part hereof as ‘Exhibit A.’

“Plaintiff states that although demand has been made upon defendant for said amount, defendant refuses to pay same, or any part thereof.

“Plaintiff says that the said transaction was fiduciary, in that the defendant acted as plaintiff’s agent, made the said purchase and sale for plaintiff’s account as such agent, and has appropriated and unlawfully converted the said sum thus belonging to plaintiff to its own use.

“Wherefore plaintiff asks judgment against defendant for said sum of $10,381.25, with interest from November 20th, 1903.”

“Exhibit A” referred to in the petition is as follows:

Bought:

25.000 bushels December wheat @ 77-Jc... $19,375.00

25.000 bushels December wheat @ 82-|c... 20,531.25

10.000 bushels December wheat @ 82c.... 8,200.00

25.000 bushels December wheat @ 82:{:c... 20,562.50

25.000 bushels December wheat @ 82£c... 20,718.75

10.000 bushels December wheat @ 82-|-|c.. 8,218.75

5,000 bushels December wheat @ 82-|c... 4,106.25

15.000 bushels December wheat @ 82^0... 12.,337.50

10.000 bushels December wheat @ 82|:c... 8,225.00

150.000 $122,275.00

Sold:

150.000 bushels December wheat @ 88£.. .$132,750'.00

Cost of wheat purchased as above ...... 122,275.00

Profit............................$ 10,475,00

Less Commission 1-16.............. 93.75

Net profit........................$ 10,381.25

To the petition the appellant filed the following answer:

“By way of amended answer to the petition of plaintiff, the defendant denies, that on July 14, 1908, or at any time, plaintiff employed defendant, through its alleged representative or otherwise, to buy for plaintiff one hundred and fifty thousand bushels of number two red winter wheat to be delivered in the month of December, 1903, under the rules of the Merchants ’ Exchange of St. Louis, or that the defendant accepted such commission or bought said one hundred and fifty thousand bushels of wheat. The defendant denies, that in the month of November, 1903, or at any time, at plaintiff’s instance, the defendant sold for plaintiff one hundred and fifty thousand hushels of wheat theretofore purchased for plaintiff, .or any quantity of wheat theretofore purchased hy defendant for plaintiff, or that from such sale a net profit was realized of $10,381.25', or any other sum. The defendant denies that it has converted to its own use any sum of money or proceeds of sale, which belonged to plaintiff, or that it is indebted in any manner to the plaintiff.

“Farther answering, the defendant states, that beginning with July 14, 1903, and ending August 12, 1903, at the instance and by the direction of the plaintiff, the defendant bought wheat for delivery in the month of December, 1903, in St. Louis, under the rules of the St. Louis Merchants’ Exchange, from the persons, in the quantities and for the following prices per bushel, to-wit:

July 14 B. H. Lang & Co., 25 M at........... 77|c

Aug. 3 T. W. Carter & Co., 5 M at ........ 82'c

Aug. 3 C. H. Albers Co., 25 M at.......... 881c

Aug. 3 J. H. Teasdale Co., 20 M at......... 82^0

Aug. 3 W. A. Gardner & Co., 5 M at........ 82{;C

Aug. 3 A. Miller, 5 M at .................. 82c

Aug. 5 Hubbard & Moffett Co., 10 M at .... 82fc

Aug. 5 E. C. Chamberlain & Go'., 5' M at..... 82|c

Aug. 5 T. W. Carter & C'o., 5 M at.......... 821c

Aug. 5 Woodlock & Gessler, 5 M at......... 82fc

Aug. 12 C. H. Albers Com. Co., 10 M at..... 82{:c

Aug. 12 Langenberg Bros. & Co., 5 M at.... 821c

Aug. 12 Langenberg Bros. & Co., 5 M at.... 82¿c

Aug. 12 Ballard Messmore & Co., 5 M at.... 821c

Aug. 12 C. H. Albers Co., 5 M at............ 82^0

Aug. 12 C. H. Albers Co., 5 M at............ 82Jc

Aug. 12 C. H. Albers Co., 5 M at... ........ 82|c

‘ ‘ That at the times of the said respective purchases the defendant by direction of the plaintiff sold for delivery in the month of May, 1904, in the city of Chicago, Illinois, under the rules of .the Chicago Board of Trade, an equal quantity of the same grade of .wheat, thereby effecting what are known to dealers in futures as spreads between St. Louis and Chicago; that the Chicago transactions were subsequently closed out by direction of the plaintiff, leaving the St. Louis trade still open; that at various times, between July 29 and September 1, 1903, the said trades, hereinbefore specified, were rung out, or closed under the rules of the St. Louis Merchants’ Exchange, in some instances with a loss, and in other instances with a profit, the net result being a profit of $1,350 which the defendant has always been ready and willing to pay to the plaintiff.

“Farther answering, the defendant states that on November 20, 1903, it sold for the plaintiff one hundred and fifty thousand bushels of wheat for delivery under the rules of the St. Louis Merchants’ Exchange in the month of December, 1903; that theretofore defendant had bought at various times between July 14 and August 15th of said year for plaintiff’s account and at his instance and request one hundred and fifty thousand bushels of wheat for the same month’s delivery; that the wheat sold on account of plaintiff was not wheat belonging to plaintiff, but which was covered by contracts with others for delivery in said month of December; that in the month of December defendant delivered one hundred and fifty thousand bushels of wheat for the account of plaintiff, at the price made in November, and received the proceeds of sale therefor; that persons from whom wheat had been bought as aforesaid on account of plaintiff made default on their contracts in the said month of December and are still in such default and owe to defendant the amount due under their contracts at the prices thereunder made; that the matters thus standing between plaintiff and defendant are still open and unadjusted, although, defendant believes and states the fact to be, that upon the performance of their contracts by said sellers, there will be a net result or profit to plaintiff of some thirteen hundred and fifty dollars.”

The respondent thereupon filed the following reply:

“Comes now plaintiff and for reply to the amended answer of defendant herein, admits that beginning with July 14, 1903, and ending August 12, 1903, at the instance and by the direction of plaintiff, defendant bought a total of 150',0001 bushels of wheat for delivery in the month of December, 1908, in St. Louis, Missouri, under the rules of the St. Louis Merchants ’ Exchange, from the persons, in the quantities and for the prices per bushel set out on page 2 of said amended answer; but plaintiff says that he has no knowledge or information as to whether the said trades specified were at various times between July 29th and September 1,1903, ‘rung out’ or closed under the rules of the St. Louis Merchants’ Exchange, and plaintiff further says that if the said trades hereinbefore specified were so ‘rung out’ or closed by defendant under the rules of the Merchants’ Exchange, it was done by defendant without the knowledge or consent of plaintiff, and plaintiff does not know and has no information as to whether these trades were so closed out at a profit or otherwise, and is in no way concerned or affected thereby, for' the reasons hereinafter set forth.

“Further replying to said amended answer plaintiff admits that on November 10, 1903, defendant sold for plaintiff one hundred and fifty thousand bushels of wheat for delivery in the month of December, 1908, and that theretofore defendant had bought at various times between July 14, 1903, and August 15, 1903, for plaintiff’s account, and at his instance and request, 150,000 bushels of wheat for the same month’s delivery, and plaintiff admits that in the month of December defendant delivered 150,000 bushels of wheat for the account of plaintiff at the prices made in November, and received the proceeds of sale therefor. Plaintiff further says that he has no knowledge or information as to whether the 150,000 bushels of wheat so sold on account of plaintiff was or was not the 150,000 bushels -of wheat bought for plaintiff, or as to whether it was wheat which was covered by contracts with others for delivery in said month, and he has no knowledge or information as to whether or not the persons from whom defendant alleges it bought wheat on account of plaintiff made default on their contracts and are still in default, and plaintiff says that he is not in any way concerned or affected by said alleged facts, for the reasons hereinafter set forth.

“Further replying, plaintiff denies that the account between plaintiff and defendant is still open and unadjusted as alleged in said amended answer; but on the contrary plaintiff alleges that all the aforesaid transactions between plaintiff and defendant occurred on the Merchants’ Exchange of the city of St. Louis and were and are subject to the rules and regulations of said Merchants’ Exchange, that in and by section 13 of Eule YIII of said Merchants ’ Exchange it is provided as follows:

‘ ‘ ‘ Sec. 13. In case any member of the Exchange, acting as commission merchant, shall have made purchase or sales, by order, and for account of another, whether the party for whom any such purchase- or sale was made shall be a member of the Exchange or otherwise, and it shall subsequently appear that such trades may be offset and settled by other trades made by said commission merchant, he shall be deemed authorized to make such offset and settlement, and to substitute some other person or persons for the one from or to whom he may have purchased or sold the property originally; provided, that in case of such substitution the member or firm making the same shall be held to guarantee to his or their principal the ultimate fulfillment of all contracts made for account of such principal which have been so transferred, and shall be held liable to1 such principal for all damages or loss resulting from such substitution, subject, however, in' all respects to the rules of the Merchants ’ Exchange. ’

“Plaintiff therefore says that by ringing out or closing without plaintiff’s- knowledge' or consent the trades theretofore made at the instance and request of plaintiff between July 14th and August 12, 1903, by which defendant purchased a total of 150,000 bushels of wheat for account of plaintiff for December delivery, as alleged in the answer herein, and by failing to keep the identical wheat purchased for plaintiff until plaintiff directed it sold, defendant thereby guaranteed and became itself liable to plaintiff for the fulfillment of all these transferred or substituted contracts for December delivery, and is liable to plaintiff for the amount claimed in his petition, whether the persons from whom defendant purchased wheat in these transferred or substituted contracts have made default or not.

“Wherefore plaintiff again prays judgment in accordance with the prayer of the petition herein. ’ ’

At the trial, which was before a jury, the respondent offered to read in evidence the following part of the amended answer of the appellant, to-wit:

“Further answering the defendant states, that beginning with July 14,1903, and ending August 12, 1903, at the instance and by the direction of the plaintiff, the defendant bought wheat for delivery in the month of December, 1903, in St. Louis, under the rules of the St. Louis Merchants’ Exchange, from the persons, in the quantities and for the following prices per bushel, to — wit ¡

July 14 B. H. Lang & Co., 25 M at.......... 77-§c

Aug. 3 T. W. Carter & Co., 5 M at.......... 82c

Aug. 3 C. H. Albers Co., 25 M at........... 82£c

Aug. 3 J. H. Teasdale Co., 20 M at......... 82JC

Aug. 3 W. A. Gardner & Co., 5 M at........ 82£c

Aug. 3 A. Miller, 5 M at .................. 82c

Aug. 5 Hubbard & Moffett Co., 10 M at---- 82fc

Aug. 5 E. C. Chamberlain & Co., 5 M at...... 82£c

Aug. 5 T. W. Carter & Co., 5 M at.......... 82£c

Aug. 5 Woodloclc & Gessler, 5 M. at........ 82|-c

Aug. 12 C. H. Albers Com. Co., 10 M.. at... 82£c

Aug. 12 Langenberg Bros. & Co., 5 M at...... 82£c

Aug. 12 Langenberg Bros. & Co., 5¡ M at...... 82£c

Aug. 12 Ballard Messmore & Co., 5 M at...... 82-J-c

Aug. 12 C. H. Albers Co., 5 M at............ 82£c

Aug. 12 C. H. Albers Co., 5 M at............ 82^e

Aug. 12 C. H. Albers Co., 5 M at............ 82£c

“Further answering, the defendant states that on November 20,1903, it sold for the plaintiff 150’,000 bushels of wheat for delivery under the rules of the St. Louis Merchants’ Exchange in the month of December; that theretofore defendant had bought at various times between July 14th and August 15th of said year for plaintiff’s account and at his instance and request for the same month’s delivery; that in the month of December defendant delivered 150',000' bushels of wheat for the account of plaintiff and received the proceeds of sale therefor.”

To the introductiqn qf this evidence the appellant objected on the ground that it was not competent evidence under the petition, and that it was a variance from the petition, which objection the court'overruled, and the appellant duly excepted. The respondent then read in evidence the part of the answer indicated.

Whereupon, the appellant read the remainder of the amended answer.

John T. Milliken, respondent, testified that July 14, 1903, he gave to the appellant, through its representative, on the floor of the St. Louis Merchants’ Exchange, an open order for the purchase of 150,000' bushels of wheat for December delivery. He received from the appellant memoranda of purchase July 14th, August 5th, August 3rd and August 12, 1903. The respondent offered these in evidence. They were objected to as incompetent, the objection was overruled, and appellant duly, excepted.

The first of these memoranda is of July 14, 1903, showing a purchase of 25,000 bushels of wheat, December delivery, at 77 1-2 cents per bushel; the purchase being made on St. Louis Merchants’ Exchange.

The second is of August 3, 1903, showing a spread between St. Louis and Chicago, as follows:

St. Louis — Bought:

25.000 December..................82-$c

10.000 December..................82

25.000 December.................82$

Chicago — Sold:

25,000' May................'......82g-

10,000' May......................82| — $

25.000 May......................82$

The third is August 5, 1903, showing another spread between St. Louis and Chicago, as follows:

St. Louis — Bought:

25.000 December..........:.....82$

Chicago — Sold:

25.000 May.....................83$

The fourth is August 12,1903, showing as follows: St. Louis, — Bought:

10.000 December .... ,...........82$ — $

5.000 December..................82$

15.000 December..................82$

10.000 December..................82$

Chicago — Sold:

10.000 May......................82f

5.000 May.....................82$

15.000 May......................82$

10.000 May......................82$

The witness stated that he told the representative of the appellant, “whenever he could buy 150,000' bushels of December wheat in St. Lonis at one-half cent under the price of May wheat in Chicago, that he could buy the wheat at St. Louis and sell it in Chicago as a hedge, but I had the privilege to discontinue at any time I wanted to.” He was asked, “What became of the sales made for your account by him in Chicago?” This was objected to as incompetent. The objection was overruled and appellant excepted. The witness states that “they were brought in and showed a profit of several thousand dollars, which was paid to me.”

November 20, 1903, respondent received from appellant the following memorandum:

“We have the pleasure of confirming the following transactions made for your account and risk to day:

“Sold 150 December wheat, St. Louis. .884-.”

After receiving this statement, witness demanded' settlement, but none was made. No payment on account of it was ever made.

The respondent offered in evidence section 13, Rule 8, Merchants’ Exchange, St. Louis, which is copied in the reply.

The appellant objected to the testimony as not competent, for the reason that the respondent undertook by a reply, which was a departure from the petition, to tender a totally different issue from that tendered by the petition.

Upon the objection being overruled, appellant excepted, and upon the reading of the section moved that it be stricken out on the following.grounds:

That in addition to being incompetent, it showed' on its face that the only condition it could create was one of liability in damages for the failure of persons who were substituted for the original contractors to carry out the contracts made by those original parties. It created no independent liability on the part of the commission merchant who made the trades in the first instance, but simply undertook to hold him responsible for the performance of the contracts by those with whom they were made, in case of substitution of other persons under the contracts. That is all it undertook to do. The rules had not been pleaded by either party tó the suit.

This motion having been denied, appellant excepted.

Daniel L. Moffit, over the objection of the appellant, exception being saved to the admission of the evidence, testified that he bought 150,000 bushels of wheat from the appellant in November, 1903, at 88-J, for December delivery. On December 1st it was delivered, witness paying the cash. The delivery was not of any specific wheat, but merely warehouse receipts calling for 150,000 bushels.

Corwin H. Spencer testified that the words “ringing out” mean off-setting sales by purchases by the commission men as between themselves, as the contracts of purchase and sale made by them on the floor of the Exchange were made in their own names. But that this offsetting was a mere matter of convenience for the expeditious dispatch of business, and in no wise affected the relations of the commission men to their customers, who were bound to settle with their customers according to their respective contracts made in their behalf.

This was all the evidence in the case, and appellant demurred thereto, which was overruled, and appellant duly excepted.

The court then, over the objection of the appellant, instructed the jury as follows:

‘ ‘ The court instructs the jury that under the pleadings and evidence herein their verdict should be for plaintiff for the total sum of $10,540.78, being the amount sued for in the petition, with interest thereon at 6 per cent per annum from November 20, 1903, the date plaintiff demanded payment from defendant. ’ ’

To the giving of which instruction appellant duly excepted, and within four days filed his motion for a new trial, which was overruled, and it duly excepted.

I. The first ground relied upon by appellant for a reversal of the judgment is, the court erred in admitting in evidence that portion of the answer 'offered by respondent.

The petition alleges that on “July 14, 1903, plaintiff employed defendant through its said representative to buy for plaintiff as his agent one hundred and fifty thousand bushels of number 2 red winter wheat, to be delivered in the month of December, 1903, under the rules of said Merchants’ Exchange of the city of St. Louis. Defendant accepted said commission and executed the same by buying for plaintiff’s account said one hundred and fifty thousand bushels of wheat on the floor of the Merchants’ Exchange in St. Louis, and reported the said purchase to plaintiff. Thereafter, on November 20, 1903, plaintiff ordered defendant to sell the said wheat so purchased for his account, and defendant executed said order of sale and sold said wheat for defendant, realizing therefrom a net profit over and above said purchase price of $10,540.25, which said profit defendant realized as plaintiff’s-agent and for plaintiff’s account, as will appear from the statement of said account herewith filed and made a part hereof as 'Exhibit A.’ ”

It will be seen from reading the allegations of the petition, in connection with the account filed therein, that the respondent charges appellant with having purchased for him 150',000 bushels of wheat in nine separate lots, each varying in price, which is stated,' aggregating the sum of $122,275.00'. The petition does not state the dates of the several purchases nor the names of the persons from whom the purchases were made.

In order to prove these allegations of the petition, the respondent introduced in evidence that portion of the answer relating to the purchase and sale of the wheat in the city of St. Louis, which stated, in substance, that appellant had purchased for respondent, at various times, between July 14th and August 12, 1903, giving the dates, seventeen different lots of wheat from different parties, naming them, aggregating 150,000 bushels, at various prices,- stating them. But respondent did not offer that part of the answer relating to the purchase and sale of the Chicago wheat.

To the introduction of that evidence appellant objected; first, because it was not competent under the petition, and did not tend to prove any of the allegations thereof, but was a variance therefrom; and, second, because appellant. set up the various purchases, not for the purpose of admitting that they constituted the transactions between them, hut for the purpose of showing what were the.real transactions between the parties, upon the theory that perhaps under a general denial the appellant might not be at liberty to go into them.

The transactions stated in the petition are totally different from those stated in the answer and introduced in evidence by the respondent.

It is a well-established rule of pleading that a party cannot state one cause of action and recover on a different one. [Weil v. Posten, 77 Mo. 287; Reed v. Bott, 100 Mo. 66; Leslie v. Railroad, 88 Mo. l. c. 54.]

It was also error for the court to permit respondent to select isolated portions of the answer and read them to the jury, when the whole answer taken together shows, as this one does, that the very object and purpose of it was to deny, not to admit, the allegations of the petition.

An answer or other pleading in a cause, when offered in evidence, should be construed by the court just as deeds or other written instruments are construed. The object to be attained in the construction of a written instrument is to get at the real intention of the parties. [Burress v. Blair, 61 Mo. 133; Koehring v. Muemminghoff, 61 Mo. 403.] Effect should he given to the whole and every part of a written instrument. [Calloway v. Henderson, 130 Mo. l. c. 86.]

The construction placed upon the answer, instead of giving force and effect to all of its provisions, had the effect of striking out the real transaction between the parties, as stated in the answer.

II. Respondent introduced no evidence tending to prove the purchases and sale's of wheat for him by appellant, as alleged in the petition, and for that reason the court should have given appellant’s demurrer to the evidence.

Where the evidence furnishes no substantial support of the allegations of the petition, then it is the duty of the court to instruct the jury to find for the defendant. [Hyde v. Railroad, 110 Mo. 272.]

III. The trial'court erred in giving the peremptory instruction to the jury, telling it to find for the respondent. This would have been true, even though he had introduced evidence tending to support his cause of action.

The rule is, that when the allegations of the petition are denied, and evidence is submitted to sustain the issues joined, the defendant is entitled to have the jury pass upon the evidence, though the defendant offers no evidence on his own part. [Wolff v. Campbell, 110 Mo. 114; Gregory v. Chambers, 78 Mo. l. c. 298.]

For the reasons above stated the judgment is reversed and remanded for retrial.

All concur.