author: FOX, P. J.

text:
    HEWITT, Appellant, v. PRICE et al.
    Division Two,
    May 14, 1907.
    . 1. JURISDICTION: Suit on Note: Equitable Counterclaim Affecting Real Estate. To a suit for tbe balance due on a note, brought after tbe deed of trust on land, situated in another county, given to secure °the nóte, bad been foreclosed and tbe land bought by plaintiff (tbe payee) and tbe amount of bis bid credited on tbe note, it is competent for tbe makers to set up an equitable defense, ask for affirmative relief, plead that tbe deed of trust was fraudulently foreclosed and ask to redeem, and tbe court has jurisdiction to bear and determine that defense. The counterclaim is a cause of action arising out of tbe contract by tbe petition made tbe basis of plaintiff’s suit, and tbe statute makes such a counterclaim a defense which the defendant may set up in bis answer. Title is merely incidental to tbe .main controversy in such case, and section 564, Revised Statutes 1899, does-not apply.
    2. DEED OF TRUST: Wrongful foreclosure: Decree. A court of equity cannot by its decree find that tbe value of tbe land at tbe date of tbe trustee’s sale was so much, direct that that sum be credited on tbe mortgage note, and cancel the note, and decree that the purchaser retain tbe land. If tbe foreclosure sale was valid, tbe purchaser is entitled to tbe land, whether tbe amount he paid for it was equal to tbe mortgage debt or not; if it was invalid, because of informality or by reason of fraud perpetrated by tbe purchaser, it should be set aside. But the purchaser cannot be compelled to pay a fixed sum for the land.
    3. -: -: Burden. Where it is sought to set aside a foreclosure sale under a deed of trust, the burden of proof rests upon the party charging fraud and false representation.
    4. -: -: Decree. If the foreclosure sale under a deed of trust on land was unfair and surrounded by a state of facts which shows to the satisfaction of the chancellor that to permit it to stand would work a fraud upon the rights of the mortgagors, then the sale- should be set aside and the parties placed in the position they occupied before the sale took place, or at the election of the mortgagors the sale may be set aside upon condition that the mortgage debt be fully paid.
    5. -: -; Value of Other Land. To determine the value of the land sold under deed of trust, the value or selling price of other land may be shown by comparison; but the location and character of such other property should be similar, and the sales therof should be near in point of time to the time towards which the inquiry as to the value of the property in dispute is directed.
    Appeal from Barton Circuit Court. — Hon. H. G. Timmonds, Judge.
    Reversed and remanded-.

      H. 8. Miller and 8. W. Moore for appellant.
    (1) The trial court was without jurisdiction to hear and determine the issues and matters set up in defendants’ answer affecting the title to real estate. R. S. 1899, sec. 564; 17 Ency. PL and Pr., 670; 12 Ency. Pl. and Pr., 135; 28 Am. and Eng. Ency. Law (1 Ed.), 201; Gray v. Marshall, 66 Mo. 123; Henderson v. Henderson, 55 Mo. 534; Railroad v. Mahoney, 42 Mo. 469; Bassett v. Fortin, 30 Minn. 27; Brown v. Turner, 113 Mo. 27; Morris v. Clair, 132 Mo. 232; Overton v. Over-ton, 131 Mo. 559; Hardware Co. v. Horn, 146 Mo. 129, 65 Mo. App. 200; Nearen v. Bakewell, 110 Mo. 642, 40 Mo. App. 625; Hanna v. Land C'o., 126 Mo; 1. (2) The findings of the court were not sufficient to sustain the decree. Robinson v. McCune, 128 Mo. 577. (3) The court erred in admitting testimony as to how much the striking of mineral at Spurgeon had raised the value of that and neighboring land, the same not being situated in the neighborhood of the land in question. Cummins v. Railroad, 63 Iowa 397; Daignanlt v. Woonsocket (R. I.), 28 Atl. 346; Standish v. Washburn, 21 Pick. (Mass.) 237; Railroad v. Splitlog, 45 Kan. 68; Huntington v. Attrill (N. Y.), 23 N. E. 544; Muller v. Railroad, 23 Pac. 265; Warden v. Railroad, 78 Mo. App. 664.

      Cole, Burnett & Moore for respondents.
    (1) The trial court had jurisdiction to hear and determine the issues made by defendants’ answer in the nature of an equitable counterclaim. Carson v. Buck-staff, 77 N. W. 670; Ainsworth v. Bowen, 9 Wis. 348; Yilas v. Mason, 25 Wis. 310; Hay v. Short, 49 Mo. 139; G-ordon v. Bruner, 49 Mo. 570. The plaintiff, in filing his repiy and defending against defendants’ equitable counterclaim, thereby submitted to the jurisdiction of the court. Real Estate Co. v. Lindell, 133 Mo. 395; dissenting opinion in Fields v. Maloney, 78 Mo. 172-, approved in Stems v. Railroad, 94 Mo. 317; State ex reL v. Smith, 104 Mo. 661; Hughes v. McDivitt, 302 Mo. 83. (2) The statute requiring suits affecting title to real estate to be brought in the county within which the real estate is situated, applies only to cases in which the title to the land is the subject of the controversy, and in which the judgment will operate directly on the title, and not to those cases where the title to land may may be merely a subject of collateral inquiry, or in which the judgment will only affect the title incidentally or collaterally. State ex rel. v. Dearing, 180 Mo. 62; Hernán v. Wade, 141 Mo. 598; Price v. Blankenship, 144 Mo. 203; Wheeler v. Dalton, 158 Mo. 323; Yandergrif v. Brock, 158 Mo. 681; Davis v. Watson, 158 Mo. 192; Granitoid Co. v. Klein, 170 Mo. 225; Klingelhoefer v. Smith, 171. Mo. 455.; Cox v. Barker, 150 Mo. 424; Porter v. Railroad, 175 Mo. 96. An action for misconduct in executing power of sale in a mortgage is transitory. Rogers v. Barnes, 169 Mass. 179. (3) An equitable defense may be made, though land not within the jurisdiction of the court may be affected by the decree'. DeKlyn v. Watkins, 3 Sandf. Ch. 185; Davis v. Morris, 76 Ya. 21; Lewis v. Darling, 57 U. S. 1; Enos v. Hunter, 9 111. 211. In causes in equity, jurisdiction of the persons of the parties gives the court jurisdiction to proceed to final decree, and compel them to do equity. This jurisdiction may be exercised to- restrain or control the parties respecting lands beyond the territorial jurisdiction of the court, and in a proper case compel a transfer of title. Baker v. Rockabrand, 118 111. 365; Carroll v. Lee, 3 Gill & J. 504; Wood v. Warner, 15 N. J. Eq. 81; Shattuck v. Cassidy,. 3 Edw. Ch. 152; Phelps v. McDonald, 99 U. S. 298; Mead v. Merritt, 2 Paige Ch. 402. (4) The findings of the court were amply sufficient to support the decree. Robinson v. McCune, 128 Mo. 587; Sheridan v. Nation, 159 Mo. 27. (5) The court committed no error in the admission of testimony. State v. Robb, 90 Mo. 30; State v. Nelson, 101 Mo. 460; Young v. Smith, 25 Mo. 341; Dunn v. Altman, 50 Mo. App. 231.
   FOX, P. J.

This cause is now before this court upon appeal by the plaintiff from a judgment and decree of the Barton Circuit Court. The origin of the controversy may thus be briefly stated:

On July 30, 1891, the defendants, S. C. Price and Clara A. Price, executed their promissory note to the plaintiff for nine hundred and forty dollars, due May 1, 1892, drawing interest at the rate of eight per cent per annum. This note was executed for the balance of the purchase money for an undivided interest in certain lands situate in Newton county, Missouri, which was conveyed by the plaintiff to the defendants. To secure the payment of said note the defendants on the date of the execution of the note executed a deed of trust to Lee L. Bell, trustee, named' in the deed of trust; the interest was paid on said note to January 1,1894. On August 31, 1898, said note not having been fully paid and satisfied, at the request of the plaintiff the trustee sold the land. At the trustee’s sale the plaintiff became the purchaser for the sum of three hundred and eighty-five dollars; the amount of the purchase price at said trustee’s sale, less the cost of foreclosing the deed of trust, was credited upon the note executed by the defendants, which amount was $366.80. On August 29, 1899, the plaintiff, J. A. Hewitt, appellant herein, instituted his suit in the circuit court of Jasper county, Missouri, for the recovery of the balance due upon said note, which was executed in July, 1891. Upon application of defendants the venue of said cause was changed to the.circuit court of Barton county, and on December 6, 1900, the plaintiff and appellant herein filed his amended petition, upon which the cause was tried. The petition substantially alleged the date of the execution of the note by the defendants, enumerating the credits to which the defendants were entitled and averring that the remainder of the note together with interest was due and unpaid, and prayed for judgment.

The answer of the defendants admitted the execution of the note sued upon, but denied that the credits to which the defendants were entitled were correctly alleged in the petition. Then follows what defendants denominate in their brief an equitable counterclaim, in which it is sought to obtain affirmative equitable relief. We deem it unnecessary to burden this opinion with a reproduction of the answer in full, but shall be content with a brief statement of the facts alleged in the answer upon which the respondents predicate their right to the relief sought.

It is alleged in the answer that fraud was practiced upon the defendants and the fact that the deed of trust to secure the payment of the note in the suit was to be foreclosed was concealed from them and they were misled by certain statements of the plaintiff, J. A. Hewitt. First, it is alleged that the price brought at the sale was grossly inadequate and that the defendants had no notice that the sale was going to take place. Second, it is alleged in the answer that the defendant, by reason of an injury received, was incapacitated and unable to attend to business, and that the plaintiff about the 15th of August, 1898, visited the defendant, S. C. Price, and tendered him his sympathy and informed him that he had taken no proceedings to foreclose the deed of trust and that no sale was to be made, when in fact it is averred that the plaintiff at that time and a long time prior thereto had taken steps to foreclose said deed of trust and that the foreclosure proceeding was then pending. It is averred that had he not been misled by the representations of the plaintiff, he or some one else representing him would have been present at the sale, and ha'd it not been for these facts the property would have brought more than enough to have paid the note. It is also alleged that the defendants were not apprised of and did not learn of said sale or the fact that it would take place in time to give bond for the redemption of the land as described in said deed of trust, as was provided by the statutes of this State, sections 7079 and 7080, Revised Statutes of 1889.

The reply of the plaintiff to the new matter set out in the answer consisted of a general denial.

We deem it unnecessary to set out in detail the testimony of the plaintiff and defendants upon the issues as presented by the pleadings. With the views as entertained by tbis court as to tbe decree entered in tbis cause, it is sufficient to say tfiat the court beard testimony, upon tbe issues presented and that upon some of tbe material allegations contained in tbe answer there was a conflict in the testimony. As to where tbe burden of proof rests where it is sought to invalidate a transaction by charge of fraud, will be given attention during tbe course of tbe opinion.

Upon tbe retrial of this cause we are unable to say what testimony may be developed, therefore we shall not undertake upon tbe disclosures of tbe record upon tbis appeal to make a finding of the facts. There will be ample time in which to review all testimony and announce our conclusions as to the sufficiency of it and award such relief as tbe parties may be entitled to when this cause reaches here upon a decree in conformity with tbe law applicable to cases of tbis character.

Tbis cause was submitted to tbe court and on tbe 21st day of September, 1901, during tbe session of tbe Barton Circuit Court, tbe following interlocutory decree was rendered:

“Now at tbis day come all tbe parties, plaintiff and defendants, in tbe above-entitled cause, in person as well as by their respective attorneys, and announce ready for trial; and a jury being waived, tbe issues are submitted to tbe court. Whereupon, after bearing tbe pleadings read and bearing the evidence and argument of counsel, tbe court doth find tbe following to be tbe facts in tbis case:
“On tbe 30th day of July, 1891, tbe above-named defendants executed and delivered to tbe above-named plaintiff their promissory note, now sued on in tbis ease, whereby they promised, for value received, to pay to plaintiff or order, tbe sum of nine hundred and forty dollars on tbe first day of May, 1892, together with interest thereon from date at tbe rate of 8 per cent per annum; and, for tbe purpose of securing tbe payment of said note, the defendants at the same time executed and delivered to plaintiff their certain deed of trust, in the usual form, where they conveyed to Lee D. Bell, as trustee, an undivided one-third of the following described real estate, situate in Newton county, Missouri, to-wit: South half of the northwest quarter, and southwest quarter of the northeast quarter, and west half of the northeast quarter of the southeast quarter, and six acres in the east half of the northeast quarter of the southwest quarter — all in section fifteen, township twenty-six, range thirty-two, with full power in said trustee to sell said real estate, in case of default in the payment of said note, for the purpose of satisfying the same. Defendants paid the interest on said note up to January 1, 1894, but no other or further payment was ever made thereon. On August 31, 1898, pursuant to the terms and provisions of said deed of trust, and at the request of the plaintiff, said trustee sold said real estate at public auction to plaintiff at and for the sum of three hundred and eighty-five dollars, and executed and delivered to him a deed conveying to him the real estate above described. The reasonable costs attending said trustee’s sale were $18.29, leaving the net proceeds of said sale to be applied to the payment of said note, $366.89. At the time of said sale said undivided one-third of said real estate was reasonably worth the sum of thirteen hundred and fifty dollars, and that sum is its present reasonable value. Neither of the defendants was present at said sale, was not represented thereat, and had no knowledge thereof; if they had been present, or had knowledge thereof, they would have caused said real estate to bring its reasonable value; they were kept in ignorance of said sale, and by plaintiff led to believe it was not going to take place at the time it did; and they ought now to be permitted to redeem said real estate by paying to the plaintiff the full amount due him on said note, which the court finds (excluding the net proceeds of said sale) now to be fifteen hundred and twenty dollars and seventy cents.
“It is therefore ordered and decreed by .the court that the defendants pay into the hands of the clerk of this court for the plaintiff, on or before the 21st day of October, 1901, said sum of fifteen hundred and twenty dollars and seventy cents; together with interest thereon from this date at the rate of eight per cent per annum till date of such payment; and that, if such payment be made, the plaintiff shall, on or before the 31st day of October, 1901, deposit with the clerk of this court, for the defendants, a quitclaim deed, executed by himself and wife, conveying to defendant, S. C. Price, all the right, title and interest which he acquired by virtue of said trustee’s deed. It is the intention of the court in making the foregoing orders and decrees, to restore the plaintiff and the defendant, S. 0. Price, to the position of tenants in common (defendant owning said undivided one-third, and plaintiff the other undivided two-thirds), just as they stood prior to said trustee’s sale, and reserving to each any and all rights to have an accounting as to the rents, profits, insurance, repairs, improvements and taxes, as fully as though no trustee’s sale had been had; and this decree shall in no way interfere with or preclude any such accounting.
“It is further ordered by the court that further proceedings herein be postponed to' the next term of this court, at which time final judgment will be rendered herein.”

On the 21st day of January, 1902, during the January term of the Barton Circuit Court, the court entered its final decree. In the final decree the court simply repeats the finding of the facts as stated in the interlocutory decree heretofore set out and also restates the interlocutory decree. It then proceeds to enter the final decree, which is as follows:

“And it now appearing to the court that the defendants duly complied with said order of this court by paying into the hands of the clerk of this court, for the plaintiff, the amount of money ordered to be by him paid and within the time directed; and it now appearing to the court that plaintiff has failed and refused, and still fails and refuses, to comply with said order of this court directing him to deposit with the clerk a quitclaim deed for defendant, it is therefore by the court now finally adjudged, ordered and decreed as follows:
“Plaintiff may and shall keep the land above de scribed at its reasonable value on the date of said trustee’s sale, which the court found and now finds to be thirteen hundred and fifty dollars, and credit defendants therewith on their said indebtedness to plaintiff. And the court further finds that the amount due from defendants to plaintiff at the date of said sale was twelve hundred and ninety dollars and ninety-three cents, so the difference between the amount of said indebtedness and the value of said land was, at the date of said sale, fifty-nine dollars and seven cents. The court further orders and adjudges that the defendant have and recover of and from plaintiff said difference, to-wit, fifty-nine dollars and seven cents; and that plaintiff pay all costs by him made in this case, and that defendants pay all costs by them made in this case. It is further ordered that upon payment by defendant of the cost so adjudged against them the clerk of this court shall pay over to them the amount of said money by them heretofore deposited with him.”

In due time plaintiff filed his motion to set aside the finding, judgment and decree of the court in said cause, and prayed the court that he be granted a new trial, which said motion for a new trial was by the court overruled. Prom the decree and judgment rendered in this cause plaintiff in due time and proper form prosecuted his appeal to this court and the record is now before us for consideration.

OPINION.

The record in this canse discloses numerous assignments of errors as ground for the reversal of this judgment. We will treat of the complaints of appellant and give them such consideration as in our opinion their importance requires.

I.

It is insisted by learned counsel for appellant that the trial court had no jurisdiction to try this cause because the matters and things stated in the respondents ’ answer affect the title to real estate which was not located in Jasper county, where the suit was instituted, nor in Barton county, where the cause was transferred by order of change of venue and where it was finally tried, but that the land, the title of which is sought to be affected by respondents’ answer, is located in Newton county. The insistence of appellant is that the respondents ’ answer sets up an equitable defense and also prays for affirmative relief, which, under- the Code, is in effect a cross-bill for affirmative relief. This is true and in our opinion there can be no doubt but what the legal effect of such an answer was to convert this suit into an equitable proceeding. [Dunn v. McCoy, 150 Mo. 548.]

It being conceded that the answer of respondents seeks affirmative relief by which the title to real estate would be affected, it is earnestly insisted by appellant that our statute which provides that suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county in which such real estate, or some part thereof, is situate” (R. S. 1899, sec. 564), deprived the Barton Circuit Court of jurisdiction to hear and determine the issues presented by respondents’ answer. Upon this proposition we will say that if this suit is to be viewed as simply one in chancery, to cancel the trustee’s deed which conveyed the title to the land in Newton county to the appellant and leave out of consideration the nature and character of the suit as made by the pleadings in the case, it might very properly be regarded as a local action and therefore should have been brought in the county where the land is situated, as provided by section 564, above mentioned; but on the other hand, if we consider the answer or cross-bill as stating but a part of the contract which was entered into between appellant and respondents, and that the other part thereof is stated in the petition, and that the two when considered together constitute the real and entire transaction between the parties, then quite a different conclusion may be reached. Our Code has made very liberal provisions respecting the settlement of controversies between litigants and has made ample provision where suits are brought, for the defendants by way of cross-bill or counterclaim to assert every right to which they may be entitled connected with the subject-matter of the cause of action alleged in the petition. Section 604, Revised Statutes 1899, provides that “the answer shall contain a general or special denial of the allegations of the petition and a statement of any new matter constituting a defense or counterclaim.” Section 605 ¡arovides : “The counterclaim mentioned in the last section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of any of the following causes of action: First, a cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action; second, in an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action. The defendant may set forth by answer as many defenses and counterclaims as he may have, whether they be such as have been heretofore denominated legal or equitable, or both.”

It will be observed that the first section as above quoted requires the defendant to plead any new matter or counterclaim he may have to the cause of action stated in the petition, and the second section defines what the defenses or counterclaims may consist of which the former requires to be pleaded, and one of them is a cause of action arising out of a contract or transaction set forth in the petition as the foundation of plaintiff’s claim or connected with the subject of the action. In our opinion the respondents’ defense and counterclaim clearly fall within the provisions of this section. The deed of trust in pursuance of which the ■sale of respondents ’ land was made, concerning which they now by their answer seek relief, was directly and intimately connected with the note in this controversy upon which the plaintiff predicates his cause of action. The execution of the note and the deed of trust must be considered together and constitute the entire transaction between the parties and it was by reason of the plaintiff being the legal holder of the note upon which he brought suit which entitled him to request the sale and have the land sold in payment of such note. In our opinion the respondents had the right to set up the equitable defense and ask for affirmative relief, and it is very questionable, if they had failed to make such defense in an action upon this note, whether or not they could have sought such relief and had the questions litigated by presenting them in a different form to the court for determination. [Donnell v. Wright, 147 Mo. l. c. 647.]

While in the case at bar the main controversy and in fact the cause of action as stated by the plaintiff was upon the note, yet the deed of trust which was given as security for the note was clearly connected with the subject of the cause of action upon the note as stated by the plaintiff in his petition, and while it may he said that the deed of trust was merely incidental in this proceeding to the main controversy, yet it is so clearly connected with the subject of the cause of action that in our opinion there can be no question as to the right of the respondents to present such equitable defenses as they may have growing out of the sale under the deed of trust to satisfy the payment of the note upon which this suit was brought. "We are, therefore, of "the opinion that section 564, Revised Statutes 1899, as heretofore indicated, which requires suits for the possession of real estate or whereby the title thereto may be affected to be brought in the county wherein such real estate lies, does not apply to actions in which the question of title is merely incidental to the main controversy. [Royston v. Royston, 21 Ga. 161.]

In Massie v. Watts, 6 Cranch l. c. 158, Chief Justice Marshall, in discussing the subject of jurisdiction, announced this principle. He said: “But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence of contract, or as trustee, or as the holder of a legal title acquired by any species of mala fieles practiced on the plaintiff, the principles of equity give a court jurisdiction wherever the person may be found, and the circumstance that a question of title may be involved in the inquiry, and may even constitute the essential point on which the case depends, does not seem sufficient to arrest that jurisdiction. ’ ’

In Olney v. Eaton, 66 Mo. 563, which was a case to enforce a vendor’s lien, the answer consisted of a general denial and pleaded specifically that plaintiff agreed to receive lands in the State of Kansas as part payment of the purchase money, and in pursuance of that agreement tendered a deed and prayed for a specific performance of the contract. The reply in that case admitted the contract for the purchase of the Kansas lands, but averred it was a separate and distinct transaction having no connection with the first. While the court found that the two contracts were separate transactions, yet it was expressly held that if the finding had been the other way, that the transactions were to be considered together as an entirety, then the judgment should have been for the defendant, notwithstanding the fact that the land was located in another State. The rule was announced in that case that “decrees of courts of-equity do, indeed, primarily and properly act in personam, and, at most, collaterally only in rem; hence, the specific performance of a contract for the sale of lands lying in a foreign country, will be decreed in equity, whenever the party is a resident within the jurisdiction of the court.”

II.

This brings ns to the consideration of the decree finally rendered in this cause. It is the final decree ' that constitutes the judgment in this cause and in which the rights of the parties are declared and is the only one with which we have to deal; therefore, we will omit any reference to the interlocutory decree. In our opinion this decree is erroneous. It will be noted that the chancellor sought to ascertain the value of the land and from the testimony heard, place a certain value upon it. Then follows the recitals in the final decree that the plaintiff may and shall keep the land in controversy at its reasonable value on the date of said trustee’s sale, which the court found and now finds to be $1,350, and credit defendants therewith on their said indebtedness to plaintiff. This decree is illogical and was' doubtless based upon the theory that the land had been sacrificed at the sale; however, it certainly cannot be the law that the chancellor can fix the price' upon the land upon which a deed of trust is given and compel the plaintiff to take it at the price so fixed. The plaintiff in this case has the right upon his own accord to bid upon this land at the sale and if such sale was made in accordance with the provisions of the deed of trust, not surrounded by any conditions which would operate a fraud upon the rights of the defendants, then he has the right to keep the land at the price bid for it. If the sale was unfair and the defendants misled by the false and fraudulent representations of the plaintiff to not attend the sale or have some one to represent them, and to permit such sale to stand would operate fraud upon the rights of the defendants, then the chancellor should set it aside, but we know of no rule in equity which would authorize the chancellor to fix the price upon land held as security under a deed of trust, to say by a decree.that you must take this land at this price. The purchase of land in cases of this character must be entirely voluntary, and if the purchase and sale are valid the party purchasing is entitled to hold the land; if it is invalid by reason of any informality in conducting the sale or by any fraud perpetrated by the purchaser, then it ought to be set aside, but we are unwilling to say that a party holding a deed of trust can be by a decree of a court of equity compelled to pay any fixed sum for the land upon which the deed of trust is given.

in.

It is next insisted that, under all the evidence elicited at the trial, the finding upon the issues as presented by the equitable defense in the'answer should have been for the plaintiff. We repeat that we shall not undertake to review all the testimony introduced upon the issues as presented by the answer. Until there is a decree which clearly sets forth the finding of the court that the sale of this land was either fraudulent or not fraudulent there is no necessity for doing so. The law is well settled in this State as well as in other jurisdictions, where it is sought to set aside a sale upon the ground of false representations or fraud, that the burden of proof rests with the party charging such fraud and false representations, and if upon the retrial of this cause the chancellor finds that this sale was unfair and surrounded by a state of facts which shows to the reasonable satisfaction of the chancellor that to permit it to stand would work a fraud upon the rights of the defendants, then such sale should be set aside and the parties placed in the position they occupied before any sale took place, or at the election of the defendants the sale may be set aside upon condition that the amount of plaintiff’s debt together with interest be fully paid and" satisfied.

IV.

Appellant complains at the admission of testimony respecting the value of the land embraced in the sale under the deed of trust. It is. earnestly insisted that the court erroneously admitted testimony showing the value of the land in dispute by comparison with the value of other property. It is sufficient to say upon, this proposition that the law is well settled in this State upon that subject, and while the value or selling price •of similar property may be taken into consideration in determining the value of the piece of property in litigation, it is equally true that the location and character of such property should be similar and the sales of such other property should at least be reasonably near in point of time to the time at which the inquiry of the value of the property in dispute is directed.

For the reasons as herein indicated the decree and judgment should be reversed and the cause remanded, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    DIAMOND CREEK CONSOLIDATED GOLD & SILVER MINING COMPANY, Appellant, v. THOMAS H. SWOPE.
    Division Two,
    May 14, 1907.
    1. PARTNERSHIP: Existence: Contract: Intention. Except where parties have held themselves out as copartners and credit has been extended to them as such, when in fact they were not partners between themselves, a partnership is a relation between two or moré competent persons resulting from a contract, and accordingly only exists where the parties intended to enter into á contract of partnership. A contract, whieh it is contended made the parties thereto partners, like other contracts, must be construed- according to the manifest intention of the parties, and that intention must be ascertained from the contract itself and the surrounding circumstances.
    2. -: Borrowing Money: ■ Interest as Bonus: Undisclosed Principal. An agreement by which one of the parties thereto agreed to give the other a one-fourth interest in a mine as a bonus for loaning him $25,000 to be used in purchasing and operating the mine, did not make the lender a partner of the borrower, who was also the purchaser of the mine; nor did that agreement constitute the lender an undisclosed principal of the borrower.
    Appeal from Jackson Circuit Court. — How. A. F. Evans, Judge.
    Affirmed.

      Grant I. Rosenzweig for appellant; G. W. Baker of counsel.
    Liability through partnership and agency is the same thing. Cato v. Huston, 7 Mo. 148; Chouteau v. Goddin, 39 Mo. 229; Martin v. Lutkewit, 50 Mo. 59; Pomeroy v. Benton, 57 Mo. 545, 77 Mo. 64; Filbrun v. Ivers, 92 Mo. 392; King v. Oil Co., 81 Mo. App. 165; Shoe Co. v. Lumber Co., 86 Mo. App. 443; 15 Enc. PL & Pr., 869. A dormant partner may always be sued because he stands in the position of an undisclosed principal. Sessions v. Black, 40 Mo. App. 569; Provenchere v. Reifess, 62 Mo. App. 50; Higgins v. Dellinger, 22 Mo. 397; Ferris v. Thaw, 72 Mo. 446; Richardson v. Farmer, 36 Mo. 55; Winslow v. Stone, 169 Mo. 243; Snyder v. Burnham, 77 Mo. 52; Queen v. Crawford, 127 Mo. 356; Hornblower v. Crandall, 78 Mo. 581; Wet-more v. Crouch, 150 Mo. 682; Torbet v. Jeffrey, 1611 Mo. 655; Tamblyn v. Scott, 111 Mo. App. 50; Kansas City Brick Co. v. Pratt, 114 Mo. App. 651.

      G. O. Tichenor for respondent.
    (1) This is not a suit by an outsider for something furnished to Howard, believing that he was a partner of Swope, but it is based upon a contract in writing whereby plaintiff and two others as vendors sold certain lands and personal property to Howard, the vendee, upon condition that he, and he alone, should do certain things looking to the payment of the balance of the purchase money. Hughes v. Ewing, 162 Mo. 261. Swope was to get a certain interest in the land alone, not in the whole of the property purchased, as a bonus for the loan. Howard was not required to purchase the land, as Ewing was in the Hughes case. Howard never did actually get any title to the land, and Swope never could get title to any part of it until it was paid for and until plaintiff’s contract had ended by its completion; Swope was to get no profits by his contract with Howard. (2) Even if Howard had got the title to this land, and even had he made a deed to an interest in it to Swope as a bonus for this loan, he would not have been liable for any incumbrance on that land for the purchase money unless he had expressly assumed it. Hicks v. Hamilton, 144 Mo. 495.
   GANTT, J.

This is an appeal from a judgment on demurrer in favor of defendant, by the circuit court of Jackson county. Without repeating the formal language of the petition, it suffices to say that it avers that plaintiff is a corporation, and upon IS! ovember 28,1893, was the owner and in possession of a certain mining property in California, known as the Eagle Bird Mine, comprising real estate, hoisting works, stamp mill, and other improvements, the same being free and clear of , all liens and charges. Loupe and Prank were the chief stockholders of the Diamond Creek Company, owning practically all of the stock. At that time Howard appeared upon the scene and a contract was entered into in writing between Howard on the one side and on the other side the Diamond Creek Company, Loupe and Prank, wherein it was agreed (by way of carrying out a sale of the mining property to Howard) as follows: Deeds and bills of sale in favor of Howard covering all the real and personal property of the Diamond Creek Company, were to be executed and placed in escrow in the hands of the American Bank, together with all the corporation shares duly assigned. Howard was to pay ten thousand dollars cash' at the time the conveyances were placed in escrow. Howard was to go into the immediate possession of all the mining property, carrying on development and mining work upon the same in a reasonable and proper manner, without any expense to the Diamond Creek Company, Loupe or Prank, and was to keep track of the ore taken from the mine, and was to place in the hands of the American Bank for the benefit of the Diamond Creek Co., Loupe and Prank, one-half of the net profits derived from the working of the mine, until the sum so deposited should amount to twenty thousand dollars- (in addition to the ten thousand dollars), at which time Howard should be entitled to receive from the American Bank the full title. Howard further agreed until full payment of the deferred twenty thousand dollars he would not suffer the mining premises to be encumbered by any debts or liens for labor or material of any kind or character whatsoever, and would pay all such debts at maturity, to the end that in case he should fail to make the deferred payments, all property should be returned to the sellers free and clear of all and every encumbrance made or suffered by or through Howard. In case Howard should cease operations for sixty days (except for fires, strikes or unavoidable casualty) the agreement should be terminated and Howard’s right to purchase the property should cease, and all the conveyances, etc., placed in escrow should be returned to the Diamond Creek Company, Loupe and Prank. In case all the payments above mentioned are made by Howard or whenever he pays the said twenty thousand dollars he is to have all documents of title from the American Bank. The agreement was signed by Diamond Creek Company, Loupe, Prank and Howard.

The conveyances aforesaid were executed and placed in the hands of the American Bank, and Howard was placed in immediate possession and control of all the real and personal property, machinery, etc., and the sellers fully performed in every way. The first payment of ten thousand dollars was made by Howard and also an additional sum of six hundred dollars, but nothing further. Howard continued in possession of the mining property from November, 1893, until July, 1896, working and operating the mine. But Howard and Swope, Swope being the principal and partner of Howard as hereinafter more fully recited, committed a breach of the contract in that they did not carry on the development of the mine in a reasonable and proper manner without expense to the sellers, and did not render statements of the operations, and did not place in the hands of the American Bank one-half of the net profits, and did not continue the operations and did not pay over any proceeds, and did suffer the mining property to be encumbered by debts and liens for labor and material incurred during the time that Howard and Swope were in possession of the premises, and did not pay and discharge all debts, to the end that the property should be returned to this plaintiff free and dear of encumbrance made and suffered by Howard and Swope in case they should fail to make the deferred payments provided for. On the contrary, while Howard and Swope were in possession and were developing the property, they employed upon the same a large number of miners, etc., and about July 1, 1906, Howard and Swope abandoned the property without cause or excuse, and about that date the Diamond Creek Company recovered possession of its property. But at that time of abandonment, • Howard and Swope were indebted to their miners and. workmen in a sum aggregating $6,471.80 for work done while they were in possession and operating, for which sum, in accordance with the laws of California, the miners and workmen were entitled to miners’ liens upon the property; that the miners accordingly, within thirty days after suspension of work, filed their miners’ liens against the property, which liens were a valid and subsisting cl aim against the property of this plaintiff. And these lien claims, in the proper court of California having jurisdiction, were duly foreclosed and carried to a judgment of lien against the property, which liens tire Diamond Creek Company to the amount aforesaid was obliged to pay and did pay, to save its property from utter loss, which liens and judgment bore interest at seven per cent. Whereby there became due to this plaintiff $6,471.80 with seven per cent thereon from July 1, 1896. That out of the operation of the mine under Howard there was in fact realized a net profit of $2,400, of.which $1,200 (being the half) should have been paid to plaintiff, but Howard only paid six hundred dollars, leaving six hundred dollars unpaid and due on that account, with interest from July 1, 1896. That by reason aforesaid plaintiff has been damaged in the total sum of $7,071.80 with interest from July 1, 1896, which was demanded upon July 2, 1896, bnt has never been paid. That in all .the foregoing proceedings, Howard acted in his individual name, but the fact in reality was that upon November 14, 1893, there had been executed between Swope and Howard a contract as follows:

“Whereas, one E. C. 0. Huhn has an option dated November 2, 1893, from the Diamond Creek Consolidated Gold and Silver Mining .Company for the purchase of certain mining property therein described, situated in Nevada county, California, which proyides among other things, that the said Huhn may take possession of said property upon the payment of ten thousand dollars to the said company, and work the same, accounting to said company thereafter for one-half the net profits arising therefrom, and that when the said company shall have received twenty thousand dollars out of such profits, the said property shall be .absolutely conveyed to the said Huhn, to which written option reference is made for the better understanding of the following contract, and, whereas, Frederick Howard of Jackson county, Missouri, by agreement with said Huhn has the right to proceed under the said option to-purchase such mining property, and is about to go to California to investigate the same, and the title thereto and to determine the advisability of proceeding under the said option, or such other more satisfactory option as may be had to purchase the said property, and is desirous of obtaining a loan of twenty-five thousand dollars for two years at six per cent interest, and,
“Whereas, Thomas H. Swope of Woodland county, Kentucky, has heretofore agreed to loan twenty-five thousand dollars to the said Howard on the joint and several note of himself, Wilson Waddingham and E. C. O. Huhn, payable two years after date, with interest at the rate of six per cent per annum. Now, therefore in consideration of the premises and of other good and valuable considération, the said Howard and Swope do hereby agree with each other as follows:
“1st. The said Swope is to pay the said Howard twelve thousand five hundred dollars on the execution of this contract (the receipt of which is hereby acknowledged) and is to pay him twenty-five hundred dollars on December 14, 1893 ; twenty-five hundred dollars on January 14, 1894; twenty-five hundred dollars on February 14, 1894, twenty-five hundred dollars on March 14,1894; twenty-five hundred dollars on April 14,1894 ; making a total payment of twenty-five thousand dollars as hereinbefore provided. The said Howard agrees to accept such deferred payments of twenty-five hundred dollars each at the office of George W. Lee in Kansas City, Missouri, and the said Swope agrees to pay interest on such deferred payments at the rate of six per cent per annum from this date until such payments are respectively made and settled for such interest as may be due at the office of George W. Lee aforesaid on May 14,1894.
“2nd. The said Howard is to give said Swope on the execution of this contract a promissory note of even date hereunto for twenty-five thousand dollars, made by him, the said Howard, and the said Wilson Waddingham and E. C. O. Huhn, payable on or before two years from date with interest at six per cent per annum, payable semiannually (the receipt of which note is hereby acknowledged by said Swope) and the said Swope agrees to accept at any time before the maturity of such note payments thereon in sums of not less than twenty-five hundred dollars, such payments to be made for his credit at office of George W. Lee aforesaid.
“3rd. The said Howard agrees as soon as practicable after the execution of this contract to proceed to investigate the said mining lands and the title thereto, so as to determine the advisability of proceeding under such option for the purchase of said lands, and if after making such investigation he elects not to proceed under such option, or other more satisfactory option, he agrees at once to repay to said Swope the sums already loaned to him, under this contract, without waiting for the maturity of said note.
“4th. If the said Howard shall elect to proceed under said option for the purchase of such lands, he is to take the title to the same in his own name, and cause the deed conveying such title to him to be placed in escrow or otherwise secured, under the provision of such option, and at the same time shall execute and deliver to said Swope a declaration of trust or other instrument legally transferring and conveying to said Swope an undivided one-fourth of such lands, or the interest acquired therein by said Howard. It is understood and agreed that this interest in such lands is to be conveyed to said Swope as a bonus, for making the aforesaid loan of twenty-five thousand dollars at six per cent interest.
“5th. It is understood and agreed that the decision whether or not to proceed under such option for the purchase of said land shall rest solely in the discretion of the said Howard, and if he shall elect to proceed under such option, he shall have the exclusive control and management of the said land, and the working and developing thereof, until a corporation shall be organized as now contemplated, to which said lands shall be conveyed.
“ 6th. It is understood and agreed that the liability of the makers of said note does not in any wise depend upon this contract, or upon the success or failure of the mining operations herein provided for, but is fixed by the terms of the note itself.
“7th. It is understood that the said Howard does not agree to investigate all the lands described in the said option with Hnhn, bnt only the most valuable part of them, or enough thereof to satisfy his judgment as to the advisability of proceeding under said option, and it is further understood that the most valuable part of said lands are the three tracts first set out and described in said option.
“In witness whereof, the párties hereto have set their hands to duplicate copies hereof this 14th day of November, 1893.
“Frederick Ho war». •
Thomas H. Swope.
““Witness: T. A. Frank Jones.”

That the said contract with said Diamond Creek Company was made by Howard in pursuance of said Swope contract and was accepted by Swope as such and in all things aforesaid the said Howard was in fact the agent and partner of this defendant, Thomas H. Swope, and the said Swope was the principal and partner of the said Howard and all things done by the said Howard aforesaid were in fact done by him for and on behalf of the said Swope and the said Swope did not authorize the same to be done by the said Howard in advance but did afterward approve and ratify the acts of the said Howard aforesaid, and said Swope did knowingly have, receive and accept all benefit of both said contracts and is estopped to deny the obligations thereof.

That the relations of the said Swope to the matters aforesaid was not disclosed or known to this plaintiff until long after the year 1896, viz: in the month of October, 1902. And that prior to the month of October, 1902, the said Swope was an undisclosed principal and partner in all the matters aforesaid as done by said .Howard. That by reason of the premises the damages aforesaid are due to the plaintiff from the defendant Thomas H. Swope.

Wherefore, the plaintiff prays judgment against the defendant in the sum of ten thousand dollars with interest thereon at sis per cent per annum from filing this petition, costs and all other proper relief.

To this petition defendant Swope demurred as follows: “Now comes defendant and demurs to the petition herein, because:

“1. It charges him as a partner of Frederick Howard in the transaction stated, and it also charges that he was not the partner of said Howard in said transaction, hut was undisclosed principal, Howard having entered into the transaction in his own name, but as the agent of defendant;
“2. Because the petition shows he was neither the partner of said Howard nor was Howard his agent, nor was he an undisclosed principal.”

The circuit court sustained the demurrer, and plaintiff declining to plead further final judgment was rendered for defendant, and plaintiff appeals.

I. The plaintiff summarizes its contention in these words: “We therefore return to the original proposition that on the face of our petition, Howard bought the Diamond Creek property agreeing to handle it properly and on failure to pay the purchase price, return the same in good condition free from liens, in all of which particulars Howard defaulted; that Howard acting in this matter in his name, was really the authorized but undisclosed representative of defendant, Swope (with others), whether that authority be called the authority of partner, agent, servant, employee or what not, and that such authority aróse from the Swope-Howard contract (whether agency or partnership), including a joint ownership of the property and (of necessity) a proportionate share in its products and profits as well as performance of that contract and acceptance of the benefits thereof, and subsequent ratification.”

Notwithstanding the general allegations that the defendant was a partner or an undisclosed principal of Howard, it is certain that any liability the defendant is under to the plaintiff must be spelled out of the two contracts, the one of November 28, 1893, between the plaintiff, Frank, and Swope, on the one part, and Howard on the other, and the contract of November 14, 1893, between Swope and Howard, because there is no other promise or agreement pleaded in the petition, and not only are m> facts stated by which the defendant would be estopped to deny a partnership on the ground that he had held himself out to third parties as a partner of Howard, but the plaintiff alleges that it did not know of the existence of the contract between Swope and Howard until October, 1902, about nine years after the contract of November 28, 1898. The question, then, is, can the claim of the plaintiff that the contract of November 14, 1893, between Swope and Howard constituted them partners, be sustained? Except in cases in which parties have held themselves out as copartners and credit has been extended to them as such, when in fact they were not partners between themselves, a partnership is a relation between two or more competent persons resulting from a contract, and accordingly only exists where the parties intend to enter into a contract of partnership, for this, like other contracts, must be construed according to the manifest intention of the parties and must be determined by the contract itself and the surrounding circumstances. [Parsons on Partnership, page 58; Mackie v. Mott, 146 Mo. l. e. 254; McDonald v. Matney, 82 Mo. l. c. 365; Priest v. Chouteau, 85 Mo. 398.] It has often been ruled in this State that a mere participation in profits and loss does not necessarily constitute a partnership between the parties so participating. In the light of this well-settled principle, we are of the opinion that it cannot be fairly said that by the promise or the agreement between Swope and Howard of November 14, 1893, they intended to become partners. The great burden of the argument on behalf of the plaintiff is that, because by their contract Howard was to convey an undivided one-fourth of the lands which he should acquire by virtue of his contract with the plaintiff as a bonus for Swope’s making the loan of twenty-five thousand dollars to Howard, that constituted defendant a partner. In Kellogg Newspaper Company v. Farrell, 88 Mo. l. c. 597, Judge Norton, speaking for this court, said: “A mere participation in profits and loss does not necessarily constitute a partnership between the parties so participating. . . It is a question of intention. . . Each case must be determined upon its own peculiar facts. In seeking for the intention of the parties, the whole instrument must be looked to, and viewing the agreement in question in its entirety, it is apparent, we think, that it was not the intention of Farrell and Lindenberger to form a partnership between themselves, for it is expressly stated that Farrell turned over to Lindenberger the Post-Observer newspaper, not to be conducted by them jointly as partners, but, on the contrary, to be conducted by him in every respect as if he were the owner' thereof, and that he should conduct the business in his own name and pay all the expenses attending the running thereof. These expressions negative any intention of the parties to form a partnership.” So in the fourth clause of the contract between Howard and defendant, it is agreed that “if Howard shall elect to proceed under said option for the purchase of said land, he is to take the title to the same in his own name and cause the deed conveying such title to him to he placed in escrow, or otherwise secured under the provisions of such option, and at the same time shall execute and deliver to said Swope a declaration of trust or other instrument legally transferring and conveying to said Swope an undivided one-fourth of such lands or the interest therein acquired by said Howard. It is understood and agreed that this interest in such lands is to be conveyed to said Swope as a bonus for making the foregoing loan of twenty-five thousand dollars at six per cent interest,” and in the next clause, it is agreed that if Howard shall elect to proceed under the option given Huhn by the plaintiff, “he shall have the exclusive control and management of the said land and the working and development thereof.” No amount of words, in our opinion, can make out of this contract between Howard and the defendant anything else than a contract by which the defendant agreed to loan Howard twenty-five thousand dollars at six per cent interest, with the view to the said Howard acquiring the mine in California, and as a bonus for making said loan, Howard was to convey to defendant an undivided one-fourth interest in the lands acquired by him under the Huhn option. It was expressly provided that the liability of Howard and his co-makers bn the note, Waddingham and Huhn, did not in any wise depend upon this contract or upon success or failure of Howard’s mining profits. There was not the semblance of an agreement between Howard and defendant that they were to become partners in said mining enterprise, and by no fair and reasonable construction can it be said that it was their intention to form a partnership. The defendant was not even to get an interest in the whole property, which consisted not only of the land in which the mine had been opened by the plaintiff, but of mining supplies, tools, implements, household furniture and generally all the property of the plaintiff situated at the said mine, except the merchandise in the store at said mine. The facts of this case do not tend as strongly as those appearing in Hughes v. Ewing, 162 Mo. 261, to establish a partnership, and it was held in that case that no partnership was established. In our opinion, the circuit court correctly held that the petition did not state facts sufficient to constitute the defendant either a partner or an undisclosed principal of Howard, and that the demurrer was properly sustained and the judgment of the circuit court is affirmed.

Fox, P. J., and Burgess, J., coneur.


author: BURGESS, J.

text:
    NATHANIEL EDINGTON v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division Two,
    May 14, 1907.
    1. CONTRIBUTORY NEGLIGENCE. Contributory negligence is an affirmative defense, and, as is true of any other defense of an affirmative character, the burden is on the defendant to establish it to the reasonable satisfaction of the jury.
    2. -: Choosing Dangerous Way: Question for Jury. Where a switchman knowingly selects a dangerous way for coupling cars when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence. But whether or not he knowingly selected a dangerous way when a safer one was apparent to him is for the determination of the jury; and the effect of a verdict for plaintiff is that he did not knowingly select a dangerous way (to open the knuckle of the coupling) when he knew there was a safer one.
    3. -: -: Unusual Work: Coupling Cars to Live Train: No Notice. It was not usual for an engine to work at each end of the train, and plaintiff, a switchman, had no notice that a road engine was at work at the other end when the switching crew, at work making up the train, was ordered by the yardmaster to couple the engine and caboose on to its back end, nor did he know that the yardmaster had ordered those at work at the other end to hack it on to another track; and • when the caboose reached the back end of the train and the drawheads were about eighteen inches apart, he stepped up to open the knuckle of the automatic coupling, and inserted his arm in the narrow space between the drawheads for that purpose, and just then the train to which the caboose was to be attached, without any notice to him, backed up and caught his hand. Held, that the yardmaster- was clearly guilty of negligence in failing to notify the switch crew that there would be a movement of the train while the coupling was being done, and that it could not be said, as a matter of law, that the switchman knowingly used a dangerous way of making the coupling when a safer one was apparent.
    Appeal from Jefferson Circuit Court. — Sow. Frcmk B. Bearing, Judge.
    Affirmed.

      L. F. Parker and John W. Booth for appellant.
    (1) Respondent was injured by Ms own negligence in putting Ms arm in peril wben bis duty and tbe exigency of tbe situation did not imperatively demand it. An employee bas no right, moral or legal, to put Ms life or limb in peril unless bis duty and tbe exigency of tbe situation concur in requiring bim to do so. Doerr v. Brewing Co., 176 Mo. 556; Smith v. Box Co., 193 Mo. 732. (2) Respondent at tbe time was acting on bis own initiative as to tbe details of opening tbe knuckle; and it was bis duty to do it carefully with reference to bis own safety; and at tbe time be was an experienced switchman. This duty, in such a matter of detail, is properly delegated to an experienced employee. Knorpp v. Wagner, 93 S. W. 967. “It is a familiar principle, which common sense as well as the rules of law ought to teach any one, that where an employee of a railroad knowingly selects a dangerous way wben a safer one is apparent to bim, and is thereby injured, he is guilty of contributory negligence.’ 1 Bailey on .Personal Injuries, Relating to Master and Servant, see. 1121, quoted with approval in: Moore v. Railroad, 146 Mo. 582; Hurst v. Railroad, 163 Mo. 322; Smith v. Box Co., 193 Mo. 737.

      A. B. Taylor for respondent.
    The evidence clearly tended to show that respondent in the act in which he was injured was exercising ordinary care; that he was executing his duty in the usual way for said work. This was affirmatively shown by the witnesses who testified. The law in his favor so presumes he was in the exercise of ordinary care. Buesching v. Gas Co., 73 Mo. 233; Weller v. Railroad, 164 Mo. 199; Riska v. Railroad, 180 Mo. 188; Eckhard v. Railroad, 190 Mo.-613. And the court is asked in the face of the evidence and the verdict of the jury, to hold that he was guilty of contributory negligence as a matter of law. The court should not do so. Here is a complicated condition of work. The court can not know as well as switchmen how a coupling on a dark night, under a hurry order, should be made. The court would not undertake to prescribe a definite rule of conduct as to the manner in which a coupler should be opened and the coupling made, and yet the chief contention for a reversal of this case would require the court to do this exact thing, to-wit, disregard the rule of evidence as old as man’s history, that he will not expose himself to peril of life and limb. The court accords this to him. And when this presumption is re-enforced by the positive evidence of competent witnesses that the action of the respondent was free from blame, we respectfully submit that controversy on this question ought to end, and does end, with the finding of the verdict.
   BURGESS, J.

This is an action for damages for personal injuries sustained by plaintiff on the 6th day of February, 1902, while in the service of defendant as a switchman in the yards of defendant in the city of .St. Louis. The trial resulted in a verdict and judgment for eight thousand dollars in favor of plaintiff. After unsuccessful motions for a new trial and in arrest of judgment, defendant appealed.

The petition, in substance, stated:

That the defendant at the time alleged was a corporation by virtue of law, and used and operated the railway and engines and cars mentioned in the petition, as a steam railroad, in the city of St. Louis. That on the 6th day of February, 1902, at the yards of defendant on Chouteau avenue, east of Tower Grove avenue, in said city, plaintiff was in the service of defendant as a switchman, and a part of his duties as such was to couple and uncouple engines and cars. That on said day, about 9:45 p. m., the defendant’s agent and yardmaster ordered and commanded the plaintiff to couple the engine and caboose with which he was working .to a caboose car attached to another train and detach it therefrom and remove it from the track on which it was. That in obedience to such order and command, the plaintiff and his fellow-employees, with said' engine, was proceeding to so couple said engine and caboose to said caboose car, and whilst the plaintiff, was in the work of making said coupling defendant’s servants in charge of the train to which said caboose car was so attached, negligently caused said train to be backed without' any notice to plaintiff thereof, causing the plaintiff’s right arm to be caught between the coupling apparatus of said caboose cars and to be so crushed as to necessitate its amputation, requiring two amputations of said arm. That the defendant’s said agent and yardmaster was negligent in ordering said train to be backed whilst the plaintiff was engaged in making said coupling, .without any notice to plaintiff, which said negligence directly contributed to cause the plaintiff’s said injuries. That by his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind; has been permanently crippled and disabled, and has lost and will lose the earnings of his labor and avocation as a switchman; has incurred and will incur large expenses for medicines, medical and surgical attention, to his damage in the sum of twenty-five thousand dollars, for which sum he prays judgment.

Defendant’s answer consisted of a general denial, a general plea of contributory negligence, and a general plea of assumption of risk.

It appears from the evidence that plaintiff was an experienced switchman, and as such was employed by the defendant in its Chouteau avenue yards in the city of St. Louis. Said yard's were switchyards, used for making up trains to go out on the main line. Besides the main track there were five other tracks called switch tracks, branching off from the main track at'various intervals, and used for making up trains. One of these tracks led to the scales for weighing cars and was called the scale track; the others were known as tracks Nos. 1, 2, 3, and 4. The general direction of all said tracks was east and west. On the night of February 6, 1902, plaintiff was one of a switching crew of four men employed in making up a freight train of some twenty-five or thirty cars on said track No. 1, the other members of the crew being Tom O’Hara, foreman, Grus Langhoff and Neil McDaniels. The train was about ready to leave the yards when the fact was communicated to James Glaslier, the night yardmaster in charge of the yards, that the air apparatus of one of the cars about midway in the train was defective. He immediately order.ed that the car be taken out and kicked on the scale track, saying, “I will ride it down and have it on the hind end by the time you get coupled up.” In order that the defective car might be placed at the rear or east end of the train it was necessary to remove the caboose car from that end and place the “bad air car” between it and the train. About the time the above order was given by the yardmaster it would' appear that the switch engine and plaintiff and McDaniels were on the scale track, and the yardmaster gave them an order to go to the rear end of the train, take the caboose off, bring it against the scale track and pick up a car that would be placed there by the road crew of the train, and then place said car and caboose at the rear of the train. Thereupon plaintiff and McDaniels, with the switch engine, went to the rear of the train, which was standing on track No. 1. There they found an unattached caboose, or what in railroad parlance is termed a ‘ ‘ dead caboose,’'’ and were about to couple the switch engine thereto when they received a signal from switchman Langhoff to return. They returned, and were telling Langhoff that the yardmaster had sent them after the train caboose, when Grlaslier himself came up and asked them why they did not do' as he told them, and he then repeated his order. Plaintiff and McDaniels, with the switch engine, went back on track No. 1. McDaniels coupled the engine to the “dead caboose” and plaintiff ran around said caboose in order to couple it to the caboose on the rear of the train. A moment after-wards McDaniels heard plaintiff hallow “Neal, I am caught.” The cabooses were provided with automatic couplings consisting of movable knuckles, one .on each drawhead, and so contrived with reference to each other that when one of the knuckles was open a coupling could be made by simply bumping the cars together. It would appear that the drawheads of the two cabooses were only about eighteen inches apart at the time, and that while plaintiff was in the act of opening one of the knuckles with his hand the train of cars in front suddenly backed and plaintiff’s right arm, above the elbow, was caught between the drawheads of the two cabooses and injured so that it was necessary to amputate it. The evidence showed that while such couplers could be opened with the foot or by means of a stick provided for that purpose, yet it was generally done by hand. Plaintiff’s own evidence in that regard was that, “You don’t open the knuckles with a club,” and that he used it to set brakes with. Defendant’s witness, James G-laslier, also testified that this work is generally done with the hand. It was also in evidence that plaintiff had control of the switch engine to the extent that he could, by signal, have it backed further away so as to allow him more room before stepping in to open the coupler; but the plaintiff testified that if he took time to do that “they would send him home.” Witness Langhoff also testified that, “If the yardmaster should see him do that, there might be some tr ouble about it.”

At the close of plaintiff’s evidence and again at the close of all the evidence defendant asked for an instruction in the nature of a demurrer thereto, which wás refused, and defendant duly excepted.

The only point insisted on by appellant for the reversal of the judgment appealed from is that plaintiff was guilty of negligence which contributed directly to his injury.

Contributory negligence is an affirmative defense, and, like any other defense of an affirmative character, the burden is upon the defendant to establish it to the reasonable satisfaction of the jury.

Defendant insists that, according to the evidence, there were three ways by either of which plaintiff might have opened-the knuckle of the automatic coupling: First-, by having the switch engine backed and the draw-heads separated such a distance as would permit him to safely open the knuckle with his hand, if he deemed it necessary to use Ms hand; second, by the use of his switchman’s stick; third, by inserting his arm in the narrow space between the drawheads, and opeMng the knuckle with his hand. Plaintiff pursued the latter course in opening the knuckle of the drawhead, and defendant contends that it was the most dangerous way, and that plaintiff must have known that it was so, in view,of these facts: That it was night and dark; that he knew the western caboose was in touch with a live locomotive and an intervening string of cars without lights on them; that said locomotive was not at the time where he could signal to it; that while he had no other light than that of his lantern, he went between the two cabooses, the drawheads of which were only eighteen inches apart, and put his arm in imminent peril of being cut off by any little bump from the western engine, which he had no assurance would not give such bump; that he knew the persons in charge of the western locomotive had no notice of the close proximity of the drawheads, or of his determination to assume so dangerous a position.

. In 1 Bailey on Personal Injuries, Relating to1 Master and Servant, sec. 1121, it is said: “It is a familiar principle which common sense as well as the rules of law ought to teach any one that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence.” The same rule is announced in Moore v. Railroad, 146 Mo. 572; Hurst v. Railroad, 163 Mo. 309; Smith v. Box Co., 193 Mo. 715.

But as to whether plaintiff knowingly selected a dangerous way when a safer one was apparent to him was for the determination of the jury. The verdict of the jury was for the plaintiff, the effect of which verdict was that plaintiff did not knowingly select a dangerous way to open the knuckle of the coupling when he knew there was a safer one.

The question of contributory negligence was presented to the jury by instruction numbered 6, at the instance of defendant. It is as follows:

“The court instructs the jury that although you should find from the evidence that the yardmaster of defendant railway company was guilty .of negligence in giving the order for the coupling of the cars, or if you find that the employees of the defendant in charge of the train which was caused to back against the caboose car which was to be coupled by plaintiff were guilty of negligence in so backing said train against said caboose, yet if you further find that the plaintiff was also negligent in attempting to make the coupling under the circumstances, and that his act in so attempting to make such coupling in any wise contributed to his injury, then he is not entitled to recover in this case.”

As to whether the plaintiff or1 switch crew knew that a ear was to be taken out of the train and thus necessitate a recoupling, the evidence showed that neither the plaintiff nor any of the switch crew knew where the car was coming from which was to be placed between the caboose and the rear of the train, and that none of them knew the object of detaching the caboose. Plaintiff testified that from where he was at work he could see the west end of the train; that it was not customary for engines to work at both ends of the train, and that he never-saw it done before in that yard.

Neal McDaniels testified that he knew nothing of there being anything done at the west end of the train, and that he was not notified that there was.

Gus Langhoff testified that when switching was being done like this was, on the end of a train made up to go out on the road, it was not usual or customary to have the road engine do the switching, and that he never knew them to work both the road engine and the switch engine at the same time. This witness also testified that he had been working for defendant as a switchman, in the same crew with plaintiff, between nine and eleven months, and had been a railroad man twelve or fourteen years.

This evidence tends to show that it was unusual to do work as it was done at the time of plaintiff’s injury, and that there was no warning to plaintiff or anything done to apprise him of his danger. The testimony also showed that plaintiff had no control whatever over the róád engine, his work being’ done with the switch engine, which was standing still, obedient to his signal, at the time the road engine backed and bumped the cars together.

We think the evidence clearly showed the yardmaster was negligent in failing to notify the switch crew that there would be a movement of the train while the work of coupling was being done, and thus forewarn them of the danger. .

The instructions are unchallenged, and presented the case fairly to the jury. The verdict is well warranted by the evidence, and should not, in our opinion, be disturbed.

The judgment is affirmed.

All concur.