author: GRAVES, J.

text:
    CONRAD STUTZ et al. v. JOHN B. CAMERON et al., Appellants.
    Division One,
    January 3, 1914.
    1. NOTICE: Computation of Time: Excluding Sunday. Where the statute, in a public road case, requires the notice to be “put up at least twenty days before the first day of the regular term of the county court,” and that term began on Monday, November 7th, a notice, notifying interested parties that a petition for the road would be presented “on the 7th day of November,” posted on October 18th, was notice for twenty days, although the statute (Sec. 8057, R. S. 1909) says that “if the last day be Sunday it shall be excluded” in the court. Those words in the statute have no application to the computation of the time unless something is to be done on Sunday; then that day, when it is the last day, is to be excluded, but this notice required the parties to appear on Monday, and therefore nothing was to be done on Sunday.
    2. PUBLIC ROAD: Commissioners not Sworn: Appeal to Circuit Court. Whether or not the commissioners appointed by the county court to view the property and assess damages for the public road were sworn, is immaterial where the landowners asked for and received a trial by jury, and appealed from their verdict to the circuit court, where a jury trial was accorded to them. After such appeal the trial is de novo in the circuit court, on the question of damages, and before a jury, and things done erroneously in the county court do not concern the circuit court, if it has jurisdiction.

      S. -: -: Erroneous: Assessment of Damages. Whether or not the commissioners, appointed by the county court to assess damages and benefits in the matter of opening the public road, erroneously excluded some lands and erroneously included others in their report, is in no sense jurisdictional, and a matter with which the circuit court has no concern.
    Appeal from Clark Circuit Court. — Hon. Charles D. Steioart, Judge.
    Affirmed.

      W. L. Berhheimer and Bert L. Qridley for appellants.
    (1) The court erred in not sustaining the motion of the appellants to dismiss this cause for the reason it had no jurisdiction on account of the defective notice. The evidence shows that the notice of the presentation of the petition herein was posted on the 17th day of October, 1910, after dark and while the moon was shining, and the court will take judicial notice: 1st, that there are 31 days in the month of October; 2d, that the first Monday in November is the 7th day of said month. Discarding the first day, the count will commence on the 18th day of October, the last day would be Sunday the 6th of November, which by virtue of the statute should be disregarded in the count, and the notice of this proceeding was posted nineteen days. E. S. 1909, secs. 8057 and 10346. These statutes are to be strictly construed. Shafner v. St. Louis, 31 Mo. 264; Lind v. Clemmens, 44 Mo. 450; Blize v. Castlio, 8 Mo. App. 290; Anderson v. Pemberton, 89 Mo. 61; St. Louis v. Gleason, 89 Mo. 67; School Dist. v. Dorton, 125 Mo. 439. Applications to open public roads are summary in their nature, and are had with a view to condemn the property of the citizen for the benefit of the public, and must be conducted in strict compliance with the statute, or the court will acquire no jurisdiction. Spurgeon v. Bartlett, 56 Mo. App. 349; St. Louis v. Koch, 169 Mo. 587; Anderson v. Pemberton, 89 Mo. 61; Ellis v. Railroad, 51 Mo. 200; Whitley v. Platt County, 73 Mo. 30; Colby v. Judy, 73 Mo. 651; Railroad v. Townsite Co., 103 Mo. 462; In re Bledsoe Hill, 200 Mo. 642; Williams v. Kirby, 169 Mo. 622: Grates' v. Crandall, 123 Mo. App. 418. The days on which the first act is done (posting the notices) must be excluded from the compulation, and the whole number of days must intervene before the time fixed for doing the second act (the action of the county court in this case). Pitts v. Shew, 4 Barn. & Aid. 208; Mitchell v. Poster, 4 Perry & D. 150; Queen v. Justice, 8 Adol. & E. 173; Zouch v. Emsy, 4 Barn. & Aid. 522; Hardy v. Pyle, 9 Barn. & C. 603; Judd v. Pulton, 4 How. Pray. 298; Oswego v. Ives, 2 Hill, 355; Turnpike Co. v. Haywood, 10 Wend. 422; Small v. Endrick, 5 Wend; 137; Rankin v. Woodworth, 6 Pa. 48; Wood on Limitations, sec. 56; Eaton v. Lyman, 33 Wis. 36 ;• Collins v. Smith,- 57 Wis. 286. (2) Again, the court had no jurisdiction for the reason, the report of the commissioners show, on its face that the commissioners did not assess the damages and benefits to each particular tract of land affected by opening and establishing said road, but did in their report therein, report the damages and benefits to ten acres of said lands when the proof shows that said ten acres was the south side of fifty-five acres laying along said proposed road. There is no assessment of damages or benefits to the balance of the fifty-five acres or the eighty acres adjoining. The same section provides “that the commissioners shall assess the amount of damages to each tract of lands separately together with the names of each party interested therein with a description of the lands on which damages were assessed.” This is a jurisdictional fact. Spurgeon v. Bartlett, 56 Mo. App. 355; Anderson v. Pemberton, 89 Mo. 61; Railroad v. Kellogg, 54 Mo. 334; Jefferson County v. Cowen, 54 Mo. 234; "Whitley v. Platt Co., 73 Mo. 30. (3) The court had no jurisdiction for the reason the record of the county court does not state or recite that the commissioners were sworn before they entered upon their duties as provided by the statute. True the report of the commissioners does recite that they were sworn before they entered upon their duties and the affidavit is attached. This is not sufficient. The record of the county court must find that they were sworn to perform their duties as such. In re Bledsoe Hill, 200 Mo. 645.

      W. T. Rutherford and T. L. Montgomery for respondents.
    (1) The notices of the intended application for opening the new road were posted on the evening of October 17, 1910, and the regular term of the county court convened on Monday, November 7, 1910. Thus at least twenty days intervened before the first day of the November, 1910, term of said court. Secs. 8057, 10436, E. S. 1909. (2) On the first day of the November, 1910, term of the county court respondents filed and presented the petition for the location of the proposed new road, and on that day appellants appeared in said court as remonstrators and filed their remonstrance to the petition, and their lands being the only lands affected by the proposed new road, they will not now be heard to complain, either as landowners or taxpayers, about the insufficiency of the notice. Secs. 10436, 10437, 10461, 10462, E. S. 1909; Lewis, Eminent Domain (3 Ed.), sec. 580; Eailroad v. Maddox, 92 Mo. 469; Searcy v. Clay Co., 176 Mo. 493; Banbie v. Issman, 142 Mo. 499; Spurdock v. Dorman, 182 Mo. 249. (3) The remonstrators in the county court (appellants here), having appeared at the hearing on the petition in the county court, they cannot now object to the want of a proper notice to other persons, if any, affected by the location of the proposed new road. Lewis, Eminent Domain (3 Ed.), sec. 584; Boss v. 'Supervisors, 1 L. B. A. (N. S.) (Iowa) 431; Walpert v. Newcomb, 106 Mich. 357; Hauser v. Burbank, 117 Mich. 642; Brady v. Hayward, 114 Mich. 326; Carr v. Boone, 108 Ind. 241; Hurst v. Martinsburg, 80 Minn. 40; Wood-worth v. Spirit Mound Twp., 10 S. D. 504. (4) The notices of the intended application for the new road having been posted on October 17, 1910, and the first day of the next regular term of the county court, being the one beginning Monday, November 7, .in computing the time in; determining whether “at least” twenty days’ notice was thereby given “before” the first day of the regular November term of said court, the day the notices were posted (October 17) should be excluded and the first day of the term (Monday, November 7), should be included. Sunday, November 6,1910, should not be excluded. Sec. 8057, B. S. 1909; State v. Fleetwood, 143 Mo. App. 699; State v. Brown, 130 Mo. App. 217; State v. Polk, 144 Mo. App. 329; Sappington v. Lenz, 53 Mo. App. 49-51; Evans v. Bail-road, 76 Mo. App. 469; State ex rel. v. Stuckey, 78 Mo. App. 545; Hahn v. Lang, 122 Mo. 605; Gray v. Worst, 129 Mo. 130; Keys v. Keys, 217 Mo. 64. (5) It is an established rule that when notice of so many days is required by statute, order of court, or written instrument, before a certain thing is to be done, or a certain event is to occur, the day of giving, serving or publishing the notice is to be excluded and the last day is to be included, so that if the act is done or the event occurs on the last day, it is sufficient. 38 Cyc. 322-d; Bichter v. State, 156 Ala. 127; Wilson v. Creditors, 55 Cal. 476; Misch v. Mayhew, 51 Cal. 514; Wahl v. Nauvoo, 64 111. App. 17; Page v. Weymouth, 47 Me. 238; Walsh v. Boyle, 30 Md. 262; Gantz v. Toles, 40 Mich. 725; Mitchell v. Woodson, 37 Miss. 567; Hall v. Cassidy, 25 Miss. 48; Taylor v. Corbiere, 8 How. Pr. 385; Jackson v. Yan Yalkenburg, 8 Cow. 260; Irving v. Humphreys, Hopk. 364; People v. Marsh, 2 Cow. (N. .Y.) 493; Hicks v. Ins. Co., 60 Fed. 690, 9 C. C. A. 215; People to nse v. Barry, 18 L. R. A. (Mich.) 337; State ex rel. v. Eggleston, 34 Kan. 714; State v. Water Co.,' 56 N. J. L. 422; Coe v. Railroad, 27 Minn. 197. (6) Where the words “at least” are used they do not change the requirement of the number of days or affect the rule that either the first o'r last day shall be excluded and the other day included, or change the requirement into one of entire days. State v. Water Co., 56 N. J. L. 422; Sappington v. Lenz, 53 Mo. App. 44; Stebbins v. Anthony, 5 Colo. 348; Arnold v. Nye, 23 Mich. 286. (7) It is only when an act is to be done on Sunday that the day is. to be excluded under the statutory rule of computation. Robinson v. Foster, 12 Iowa, 186; Conklin v. Marshalltown, 66 Iowa, 122; Merritt v. Bank, 100 Ga. 147, 38 L. R. A. 749; Evans v. Railroad, 76 Mo. App. 468; Jordan v. Railroad, 92 Mo. App. 85; Bank v. Williams, .46 Mo. 17; Cattell v. Pub. Co., 88 Mo. 356; State v. Harris, 121 Mo. 447; Maloney v. Railroad, 122 Mo. 115; State v. May, 142 Mo. 135; Keys v. Keys,. 217 Mo. 64. (8) It is the rule in most jurisdictions, including Missouri, that intervening Sundays, that is, Sundays which fall on neither the first nor last day, are to be included in computing a period of time. 38 Cyc. 332; State v. Green, 66 Mo. 631; Russell v. Croy, 164 Mo. 93; Patehin v. Bousack, 52 Mo. 431; Porter v. Paving & Const. Co., 214 Mo. 15; Wilkinson v. Costello, 14 Ga. 122; Gordon v. People, 154 111. 664; Womack v. McAhren, 9 Ind. 6; Matthews v. Arthur, 61 Kan. 455; Cressey v. Parks, 75 Me. 387; State v. Wheeler, 64 Me. 532; Robbins v. Holman, 11 Cush. 26; Thayer v. Felt, 4 Pick. 354; Corey v._Hiliker, 15 Mich. 314; Anderson v. Baughman, 6 Mich. 298; King v. Dowdall, 2 Sandf. 131; Broome v. Wellington, 1 Sandf. 664; Brown v. Smith, 9 Johns. 84; Drake v. Fletcher, 50 N. C. 410; Craig v. Ins. Co., 80 S. C. 151; Wood v. Galveston, 76 Tex. 26; Payton v. State, 35 Tex. Cr. 508; Swift v. Wood, 103 Va. 494; Bowles v. Braner, 89 Va. 466. (9) The words “before” when used as to time in a statute may be held to mean inclusive, as well as exclusive. 5 Cyc. 679;’ Webster v.' French, 12 HI. 302. (10) Filing a proper petition for the new road with the clerk of the county court on the first day o'f the November term, 1910, was a presentation thereof to the county court within the meaning of section 10436. Keys v. Keys, 217 Mo. 65. (11) A hearing was had upon the report of the commissioners upon objections filed by appellants, and all irregularities as to the oath of the commissioners, their qualifications and the filing of their report were waived by appellants. Lewis, Eminent Domain (3 Ed.), sec. 632; Raymond v. County Comrs., 63 Me. 110; Petition of Guilford, 25 N. H. 124; Wentworth v. Farmington, 51 N. H. 128; Railroad v. McKinley, 64 111. 338; Town v. Stoddard, 30' N. H. 23; People v. Gilon, 76 Hun, 346; Patton v. Clark, 9 Yerg. 268; Bennett v. Hall, 184 Mo. 421. (12) When a petition meeting the requirements of Sec. 10435, R. S. 1909, has been filed on the first day of the regular term of the county court, and notices required by Sec. 10436, R. S. 1909, have been posted, the county court has then acquired jurisdiction of the subject-matter and of the persons of those interested, and- on appeal the circuit court acquires jurisdiction. Bennett v. Hall, 184 Mo. 417; Wilhite v. Wolfe, 179 Mo. 479; Ziebald v. Foster, 118 Mo. 349; Lingo v. Burford, 112 Mo. 155; Crenshaw v. Snyder, 117 Mo. 178. (13) The county court having acquired jurisdiction on proof of proper notice given and presentation of a proper petition, and afterward all its proceedings having been irregular or void, the circuit court, on appeal, is not bound or hindered thereby in the least. Sec. 10440, R. S. 1909; Bennett v. Hall, 184 Mo. 415; Wilhite v. Wolf, 179 Mo. 479; Crenshaw v. Snyder, 117 Mo. 178.
   GRAVES, J.

This is a road case, originating in the county court of Clark county, Missouri. The case was tried de novo in the circuit court of Clark county and from a judgment there an appeal was taken to the St. Louis Court of Appeals, which court transferred it to this court, for the reason that title to real estate is involved. Counsel do not differ materially in their statements of the case, and we adopt that of the appellants, because it is just a trifle more concise. Where counsel differ will be pointed out, if necessary. Appellants thus state the case:

“On the 7th day of November, 1910, it being the first Monday in said month of November, 1910, and the first day of the regular term of the county court of Clark county, Missouri, the respondents filed in said court a petition asking the said court to establish a public road as described in said petition in Jackson township in the said county. The petition was signed by more than twelve qualified freeholders of said township, three of whom resided in the immediate neighborhood of said road.
“On the same day the appellants filed a remonstrance signed by more then twelve qualified remonstrators residing in the said municipal township, three of whom resided in the immediate neighborhood of said road. The respondents on the same day filed in said court a copy of the notice of the filing of said petition for said public road which notice was dated the 17th day of October, 1910, and the return and the evidence shows that it was posted up on the said 17th day of October, while the moon was shining, after night of said 17tL day of October, 1910, at three public places in said Jackson township, one of which was at the beginning and one at the termination of said proposed road. Upon the hearing of the issues made by said petition and remonstrance the county court found for the petitioners and found the road of sufficient public •utility and necessary to authorize the opening of said road. Said court also found that appellants,'John B. Cameron and Marie Cameron, were the only persons who owned lands over which said proposed road would pass and allowed said John B. Cameron and Marie Cameron the sum of one hundred dollars, as and for damages done said lands on account of the opening and establishing said road. Said court at the time made an order ordering the county highway engineer to survey, mark out such road on the lines as stated in the petition, take the relinquishment of the right of way from all persons who would give the same and report those persons who would not give the right of way and the damage claimed by any party through whose lands said road would run and to make his report to said court at the next regular term of said court.
“At the next regular term of said court, it being held on the 1st Monday in February, 1911, said highway engineer made his report in writing, showing the beginning, courses, distances and ending of said proposed road together with the names of persons through whose lands said road would run, the names of persons whose lands would be affected by said road, the names of persons- who refused to relinquish the right, of way for said road and also showing that the said John B. Cameron and Marie Cameron were the only persons owning lands through 'which said road will pass, which report was in all things approved at the same term of court. Upon the report of said highway engineer being approved the court made an order appointing three commissioners to assess the damages done persons whose lands would be affected by the opening of said road and through whose lands said road would pass, which commissioners were duly qualified and entered upon the discharge of their duties and assessed the damages, done the said John B. Cameron and Marie Cameron jointly at the sum of one hundred and fifty dollars on account of the lands taken and damaged by the opening of said proposed road, and, as ordered, made their report at the next regular term of said county court.
“On the 1st Monday in May, 1911, it being the first day of the regular term of said court, said commissioners made their report in writing to the said court as ordered by the court and as stated, and reported to the said court the amount of damages assessed to the said John B. Cameron and Marie Cameron jointly,,the said sum of one hundred and fifty dollars, as damages assessed by them in favor of said John B. Cameron and Marie Cameron jointly on account of the opening of said road.
“At the same term of court the appellants, John B. Cameron and Marie Cameron, filed their objections and exceptions to the report of said commissioners. Whereupon come a jury and after hearing the evidence and being advised, find that the said John B. Cameron and Marie Cameron jointly are damaged in the sum of one hundred and fifty dollars. Judgment opening the road and judgment in favor of John B. Cameron and Marie Cameron jointly for said sum of one hundred and fifty dollars as and for damages done them as aforesaid.
“Whereupon the said appellants, John B. Cameron and Marie Cameron, appealed from the judgment of the county court opening said road and from the judgment of said court in the assessment of damages done them on account of the opening and locating said road to the circuit court of Clark county, Missouri.
“Which appeal was perfected and said cause was for hearing at the October term, 1911, of the circuit court of Clark county, Missouri.
“At the said October term of said court in the trial of this cause the appellants, John B. Cameron and Marie Cameron, filed a motion to dismiss this cause for the reason the court had no jurisdiction of the same, for the reason the notice of these proceedings were not posted not less than twenty days before the first day of the term of the county court to which said petition was presented, to-wit, November 8, 1910.
“Which motion the court overruled, to which ruling the appellants at the time excepted.
“Whereupon the issue presented to the court as to the utility and necessity of said public road being presented to the court. The court found for the petitioners, that the road was of public necessity and utility and rendered judgment thereon ordering the opening of said road.
“Whereupon, the issue coming on to be heard upon the issue as to the amount of damages done appellants, John B. Cameron and Marie Cameron, being submitted to a jury of the county, who found that the damages sustained by said John B. Cameron and Marie Cameron on account of the opening and establishing ■ said road over and upon their lands was the sum of fifty dollars. Whereupon the court rendered judgment for the said sum of fifty dollars damages in favor of said John B. Cameron and Marie Cameron and ordered the same paid them if said road should be opened.
“Appellants filed their motion for a new trial both in the judgment of the court finding the road of public necessity and public utility and also the judgment for damages, which motions were by the court overruled, appellants at the time excepting. Whereupon appellants John B. Cameron and Marie Cameron filed their affidavit for an appeal and asked an appeal in the St. Louis Court of Appeals which was granted and appellants filed their bill of exceptions within the time allowed by the court and the same is now pending in this court.”

I. Appellants contend that their motion (filed in the circuit court) to dismiss the cause, “because the notices of the application for this road herein were posted on the night of the 17th day of October, and after it was so dark it could not be seen and read” and “because the notices of the establishment'of the road herein were not posted twenty days before the first day of the term of court at which the petition herein was presented” should have been sustained. Respondents say that this matter is not before ns for the reason that appellants saved no exceptions to the action of the court thereon, and cite us to page 27 of the abstract of record. Respondents are in error. The point is properly here. The motion appears on page 27, and following the motion is evidence which was taken thereon, and on page 37 of the record and at the close of evidence on the motion we have a motion to the same effect, but slightly different in verbiage, and have a ruling of the court, and an exception. There is no ruling of the court on page 27 and of course no exception. There is, however, a ruling of the court and an exception on page 37, and the ruling and exception goes to the vital question as to whether the county court ever had jurisdiction. Appellants say not, because the notices were not posted in time. We think the point is here and shall proceed on that theory.

II. No question is made as to the sufficiency of the notice as to its form, nor to the notices having been posted in the proper places. The time of the notice is the sole question. The notices were posted.late in the-day on October 17, 1910. The first day of the next term of the county court was Monday, November 7th. The statute, Revised Statutes 1909, section 10436, provides for the notice of an intended application for a public road, and we must be governed by that statute on the question. The statute reads:

“Notice of such intended application shall be given by printed or written handbills, put up in three or more public places in such municipal township or townships, one of which shall be put up at the proposed beginning and one at tbe proposed termination of said road, at least twenty days before the first day of a regular term of the county court at which the petition is presented, and w-hich notice shall apply to and be binding on all persons and corporations whatsoever owning or claiming any interest in or title to the lands, or any part thereof, over which such proposed road or change or relocation of road runs.”

If these notices had not been posted “at least twenty days before the first day of a regular term of the county court at which the petition is presented” then the county court had no jurisdiction in the matter, and as the jurisdiction of the circuit court in such cases is purely derivative, it likewise had no jurisdiction. If, however, the notices were posted for the required time, then both courts had jurisdiction. Our statute for construing statutes, Revised Statutes 1909, section 8057, among other things, says:

“Fourth, the time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday it shall be excluded.”

Under this rule, we should not count October 17th, because it was the day upon which the notices were-posted. We must know that October has thirty-one days. Excluding the 17th of October, we would have left fourteen live days in October, and the petition was, under the notices, to be presented on November 7th which gives seven more days or in all twenty-one days. This of course on the theory that we count Monday the first day of the term as a day. If we do not count Monday as a part of the term of notice, then we still have twenty days’ notice, if under the statute we can count Sunday. And here, as we gather it, is the pith to appellant’s point. They say that the full twenty days ’ notice must be given before the first day of court, and that if the last of the twenty days.falls upon Sunday, and this Sunday is the day just preceding the first clay of court, then Sunday cannot be counted. On their theory there would be but nineteen days’ notice. Are.they correct1? We think not. The notice required by section 10436,- supra, is one to apprise all parties interested, that on a given day a certain act will be done, i. e., that the parties giving the notice will present to the county court a petition praying for a public road. The filing and presentation of this petition is the act to be done of which the notice is to be given. The notice posted in this case said:

“That on the 7th day of November, A- D. 1910, at the regular November term in open session thereof and at the courthouse, we will present to the Honorable County Court of Clark County, Missouri, our duly signed petition for a public road.”

The date fixed was the first day of the November term. We think that under this statute of construction, the last day was Monday, November 7th, and not Sunday, November 6th, and for that reason that part of the statute referring to the exclusion of Sunday when it chances to be the last day upon which the act is to be done, has no application to the facts of this case. It is only when the act is to be done on Sunday,that Sunday is excluded in the computation of time under the statute. The act to be done here was the presentation of the petition. This was to be done on Monday and not on Sunday. Monday was, therefore, the. last day, and not Sunday. The exact question, under, a statute very similar to ours, has been determined by the Iowa court in Conklin v. City of Marshalltown, 66 Iowa, l. c. 123, where the court says:

‘ ‘ The petition in the case was filed on the twenty-ninth day of November, 1884, and the next term of the court commenced on the tenth day of December. The defendant appeared at the next term and moved to discontinue the action because the petition was not filed ten days before the term. Section 2600 of the Code provides that ‘if the petition is not filed by the date thus fixed [in the notice] and ten days before the term, the action will be deemed discontinued.’ Section 45, sub. 23, of the Code is as follows: ‘In computing time, the first day shall be excluded and the last included, unless the last falls on Sunday, in which case the time prescribed shall be extended so as to include the whole of the following Monday.’ By excluding the twenty-ninth day of November, the ninth day of December would be the tenth day, which was Sunday. But the statute requiring that the last day, if it falls on Sunday, shall be excluded, applies only where some act is to be done on the last day. This precise question was determined in Robinson v. Foster, 12 Iowa, 186, under the statute then in force, and which was substantially the same as sub. 23, sec. 45, of the Code. The motion to discontinue was properly overruled.”

In Merritt v. Gate City Bank, 100 Ga. l. c. 148, Simmons, C. J., thus discusses the exact question:

“This was an action in the city court of Atlanta, filed June 12, 1894, and made returnable to the July term, 1894, which began on Monday, July 2. The act of November 30, 1892, establishing new terms for that court, provides that ‘all cases brought in said- court shall be returnable to and triable at the term next ensuing after twenty days have elapsed from the filing, . . . the purpose of this act being to require a case to be filed twenty days before the term to which it is returnable.’ [Acts 1892, p. 220.] A plea to the jurisdiction, on the ground that the suit was not filed twenty days before the term to which it was returnable, was stricken by the court, on demurrer, and to this the defendant excepted. The court was right in striking this plea. Counsel for the plaintiff in error relied upon that section of the code which provides that ‘when a number of days is prescribed for the exercise of any privilege or the discharge of any duty, only the first or last day shall be counted; and if the last day shall fall on the Sabbath, another day shall be allowed in-the computation.’ [Code, sec. 4, par. 8.] Here, however, there was nothing to be done on the last day; and it therefore made no difference that it fell on the Sabbath. The provision as to the time of filing suits in the city court of Atlanta is similar to that which regulates the time of filing in the superior court, the law requiring that actions in the latter court shall be filed at least twenty days before the term to which they are returnable (Civil Code, sec. 4984); and the regular terms of the superior court begin, as do those of the city court of Atlanta, on Monday. For nearly a century the law with reference to the superior court has been the same in this respect as it is now; yet as far back as our knowledge extends, it has been the practice in that court to treat Tuesday, twenty days before the term, as the last return day for the term, thus including Sunday as the last of the twenty days. The uniform practice of the courts in this respect for so long a period, if not controlling in the construction of the law, is at least entitled to great weight; and we are not disposed at this late day to question its legality, especially since a holding that the practice is wrong would result in widespread and incalculable harm.”

In Womack v. McAhren et ux., 9 Ind. l. c. 7, it is said:

“The facts appear to be that the process was served on Friday, the 22d day of June, 1855. Court commenced on' Monday, the second day of July, 1895. The question is, was this service in time?
“We think it was. The statute provides that every action shall stand for issues and trial at the first term after it has been commenced, when the summons has been served ten days before the first day of the term. [2 R. S., p. 107.] It is further enacted that the time within which an act is to be done as herein provided, shall be computed by excluding the first ‘day and in-eluding the last. If the last he Sunday, it shall he excluded. [2 R. S., p. 205.] .
“We have the light of the adjudications on an analogous statute, to guide us in the construction of the act of 1852. In the revision of 1843, it is enacted that ‘ whenever the writ shall have been served and the declaration filed ten days before the first day of the term,’ the suit shall stand for trial. [R. S. 1843, p. 705.] In the new statute, the provision is, that the cause shall stand for trial when the summons has been served ten days before the first day of the term. [2 R. S. 107.] The phraseology as to the point before us is identical. Both require the service to be made ten days before the first day of the term. This was substantially the statutory provision through all the revisions of 1831, 1838, and 1843. Under these several statutes it was invariably held that a service on the Friday week before court, was sufficient.
“Nor does the statutory rule of excluding the first day and including the last, make any difference. That was the law long before the statute was enacted. Indeed, the statute was but enacting the decision of the Supreme Court. Thus, that the day of the service was to be excluded, was expressly decided in Krohn v. Templin, 2 Ind. 146; Hathaway v. Hathaway, 2 Ind. 513; Swift v. Tousey, 5 Ind. 196—overruling the earlier decisions in 1 Blackf. 392; 4 Blackf. 329; 5 Blackf. 319. But even before the adoption of the new rule of computation, as announced in 2 Ind., supra, a service on-Friday to appear the Monday week following, was always considered a good ten days’ service.
“We cannot see that it alters the case where the ten days’ service, and the rule of computing time are both made statutory. We think the service sufficient. Friday, the day of the service, is excluded. Monday, the day of the appearance or act done, is to be included. Sunday, not being tbe last day, is also included, as well as tbe prior Sunday in computing tbe ten days. It is only when the act is to be done on Sunday that that day is to be excluded. [2 R. S., p. 205, supra.]”

This rule of the Indiana court was approved by this court in the early case of Bank v. Williams, 46 Mo. l. c. 20, whereat we said:

“Defendant’s counsel cite Womack v. McAhren, 9 Ind. 6, where the court held that service of process required to be made ten days before court was a good •service, although the intervening Sundays were counted in making up the time; and they might have cited our universal practice in that respect, for it is never claimed that, under our statute, a service of fifteen days before term, excluding Sundays, is necessary in order to bring a party into court. ’ ’

The posting of notices in the case at bar is but the service of process. It is the method of bringing the parties into court. The trouble with counsel for appellants in this case is that they proceed upon a theory that some act was to be done on Sunday, when in fact and in law no act was to be done on Sunday. The act was to be done on Monday, and intervening Sundays, that is, Sundays which fall on neither the first nor last days, are to be included in the computation. Other cases might be cited which will be found in the reporter’s headnotes to this opinion, as he will take them from the briefs, but these sufficiently illustrate the rule. The notice was posted a sufficient length of time to give the county court jurisdiction, and through the appeal the circuit court acquired jurisdiction.

III. It is urged that the record of the county court fails to show that the commissioners of that court, appointed to view the premises, and make report, were sworn. It is true that this fact is not spread upon the record of the county court, but as a part of that proceeding there is on file the report of these commissioners, and it shows that they were sworn. Appellants contend that this is insufficient, and cite ns to In re Bledsoe Hill, 200 Mo. 630. That case dealt with a different line of statutes entirely. The question here involved under the statutes here involved, has long since been put to rest. It is not a question for consideration here at all. It was not material in the trial de novo in the circuit court. [R. S. 1909, sec. 10440.] If the county court had jurisdiction, then the appeal gave the circuit court jurisdiction to try the case anew, and things done (erroneously it may be) by the county court after it acquired jurisdiction, do not concern the circuit court, nor this court upon an appeal from the judgment of the circuit court. The statute, supra, expressly provides that in the trial de novo in the circuit court, there shall be no commissioners. In the county court the commissioners only view the property and assess damages and benefits, and even then upon exceptions being .taken the party is entitled to a jury, which was had in this case in the county court. In the circuit court the trial is at once before a jury, in so far as the damages are concerned. The contention is so admirably answered by Valliant, J., in Bennett v. Hall, 184 Mo. l. c. 414 et seq., that at the expense of length to this opinion we quote his lucid exposition of the law, rather than attempt to state it in our own way.

“The dominant idea that seems to pervade the brief of the learned counsel for the respondent and to have prevailed in the circuit court is that the record of the county court must show affirmatively a condition, or a finding, or the existence of a fact as a precedent authority for each step taken or order made, and that unless that record so shows, the whole proceeding is invalid beyond the power of the circuit court to remedy. We do not give our approval to that doctrine.

“Original jurisdiction in proceedings to open and establish public roads is vested in the county court and from its judgment an appeal lies to the circuit court where the cause is to be tried anew.

“The county court has jurisdiction of the subject in general, and when a proper petition is filed and the notice required by the statute is given, the court has jurisdiction of that cause in particular, and thereafter, in its conduct of the case, it may commit error or proceed irregularly, but such error or irregularity will not render the whole proceeding void so as to vitiate even the proceedings on appeal in the circuit court. If the county court had no jurisdiction of the case in the beginning, the circuit court could acquire none by appeal, just as in case of an appeal from a judgment of a justice of the peace, but if the county court had jurisdiction in the beginning and went wrong in its proceedings, the circuit court is no more bound by the errors or irregularities of the county court nor hindered thereby in its jurisdiction than it would be by those of a justice of the peace — the very object of an appeal to the circuit court is to correct the errors or irregularities of the inferior tribunal.

“It is said that the record of the county court in a case of this kind must show every fact essential to its jurisdiction and every fact essential to the judgment finally rendered, including the facts to be found by the court from the evidence adduced. But that is so only when the validity of the judgment itself is assailed collaterally. For example, if the final judgment of the county court is that the road be established, and if no appeal is taken therefrom, and if in accordance with that judgment it is attempted to lay out and open the road to the public and resistance is offered by the landowner, it devolves on the officer invading the private property to show by the record of the county court itself that that court had not only jurisdiction to begin the trial of the case, but also that in all the essential steps the court proceeded according to the statute. And the same is true of the record of the circuit court in this kind of case, which is statutory in its creation and in derogation of the common law. That is so only when the judgment itself is relied on as the warrant of authority on the one side for opening the road and its validity denied on the other. In such case the record must speak for itself and demonstrate its own validity. But on an appeal from-the county court to the circuit court, the jurisdiction of the latter to try and determine the cause depends on the jurisdiction of the county court in the first instance and not on the regularity of its proceedings thereafter to final judgment.

“A petition by freeholders as prescribed by the statute and a posting of the notice as in the statute prescribed, are essential to the jurisdiction of the county court. If the petition is in the form prescribed by the statute it confers on the county court the jurisdiction to hear evidence, to prove that the petitioners are what they claim to be, freeholders of the township or townships, that at least three of them reside in the immediate vicinity and that the notice prescribed by the statute had been given. The court must be satisfied of these facts before it can proceed to establish the road, and the court’s finding of these facts must appear on its record in order to sustain the validity of its final judgment. But on appeal the circuit court is not bound by the finding of the county court on those questions; it tries the case anew, hears the evidence and reaches its own conclusions. For instance, suppose a petition is presented to the county court by twelve or more men who in truth are freeholders of the township or townships and at least three of them live in the immediate vicinity; and suppose they posted the notices as required by law and at the trial in the county court introduced evidence tending to prove those facts, but there was evidence to the contrary, and the county court found that they were not such freeholders and that the notice had not been given and thereupon caused those finding’s to be entered on the record, and rendered judgment dismissing the proceedings. Now, when the petitioners appeal to the circuit court and offer their evidence on those points, is the court bound to dismiss the suit because the record of the county court does not find that the petitioners were such freeholders and that they had given the notice? What is the meaning of a trial de novo if the circuit court’s jurisdiction depends on the findings of the county court on questions of fact and on the spreading of those findings on the face of its record?

“What is here said of the supposed necessity of the appearing of the finding of those facts on the face of the county court’s record applies equally to the recital of the finding of all other essential facts which depend on the evidence; for instance, that the county court found that the proposed road was of sufficient public utility to justify its establishment at .the expense of the county. All facts essential to the lawful taking of private property for a public road, which depend for their finding on evidence, are facts for the finding of the circuit court on evidence adduced before it, and it has nothing to do with the finding of the county court, or with what the county court record shows or fails to. show on those points.

“This court is not now reviewing the proceedings of the county court; for the purposes of this case it. is immaterial what the record of the county, court shows, except on the one point of initial jurisdiction, and that there was a final judgment and an appeal. We are now reviewing the proceedings of the circuit court, and we are concerned only with'what its record shows as to its own findings as to jurisdictional facts. The learned circuit judge was of the opinion that the final judgment of the county court establishing the road was void, because tbe county court record did not show a finding by the court of the jurisdictional facts above mentioned which were to be found from the evidence, and therefore there was no judgment to appeal from, and the circuit court had no jurisdiction, and the proceeding should be dismissed. But in that respect the learned judge was in error; he had nothing to do with the findings of the county court or its final judgment; those were put aside when the appeal was taken, and the circuit court was free to make its own record.

“The final judgment in the case before us is the judgment of the circuit court, and the record by which the validity of that judgment is to be tested is the record of the circuit court; the record of the county court, except to show initial jurisdiction and that there was a final judgment and an appeal, has nothing to do with it.”

The same thought is stated at length by Robinson, J., in Wilhite v. Wolf, 179 Mo. l. c. 479. The question urged is, therefore, not a question before us now. We have to review the acts of the circuit court, and that' court alone. This of course includes the act of the circuit court in assuming jurisdiction, which we have disposed of in the previous point.

IV. Another point urged is thus stated:

“Again, the court had no jurisdiction for the reason the report of the commissioners shows on its face that the commissioner did not assess the damages and benefits to each particular tract of land affected by the opening and establishing said road, but did, in their report therein, report the damages and benefits to ten acres of said lands, when the proofs shows that said ten acres was the south side of fifty-five acres laying along said proposed road, in these words.”’

We will not discuss this point. This at most is hut alleged erroneous action of the county court, and in no sense jurisdictional. What we have just said in paragraph three above covers this point. It is, therefore, likewise ruled against the appellants.

Y. There is some point made upon an instruction given by the circuit court, but we do not deem it well taken, and this is the only error urged against the circuit court record. The force of appellant’s brief is directed toward the question of jurisdiction (a question properly in the case, but decided against them in our paragraph two) and the other questions upon the status of the county court proceedings, which are not in the case here at all. The circuit court judgment should be affirmed and it is so ordered.

All concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    WILLIAM E. ARENSMEYER, Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY.
    Division One,
    January 3, 1914.
    1. CONTRACTS: Employment as Insurance Agent: Renewal Commissions. When an insurance superintendent’s contract with his company provides that upon the termination of his employment all his interest in fees and commissions shall cease, he is not entitled to renewal commissions on premiums falling due and paid after his abandonment of the service.
    2. -: -: -: Modification. The modification by an insurance company of its rates to superintendents on renewal commissions, a change authorized by the original contract of employment, does not abrogate the superintendent’s original contract with the company nor a clause therein that upon the termination of his agency his right to commissions should cease.
    3. -: -:--: -: Subsidiary Agreement. A clause in an insurance superintendent’s contract of employment, that his interest in renewal commissions shall cease with, his employment, is not abrogated by the company’s stating, upon his transfer from one district to another, that he will retain an equitable interest in business created by him in the old district and acquire a like interest in the new district. These interests remain terminable upon the termination of his agency.
    4. -: -: -: -: Consideration. Where, in an action by a district superintendent of an insurance company for renewal commissions payable after his agency had terminated, it appears that the company told him, upon his transfer from one district to another, that he would retain an equitable interest in the business created by him in the old district and acquire a like interest in the new one, it cannot be held, in the face of a clause in his contract of employment providing that his interest in fees and commissions would cease with the termination of his agency, that the equitable adjustment at the time of the transfer constituted the consideration for a new contract of employment superseding the old one, there being no showing that plaintiff conditioned his acceptance of the transfer upon anything the company might or might not do concerning renewal commissions, or that he knew or even inquired what arrangement would be made, and no contract having been pleaded to remove to the new district in consideration of the adjustment.
    5. -: -:--: -: Retroactive Clauses. Plaintiff’s original contract of employment with defendant insurance company provided that upon the, termination of his agency his interest in all fees and commissions should cease. Upon transferring him to a new district as superintendent the company sent him for signature a contract identical with the original agreement, except that the renewal commission period was reduced on most policies. Plaintiff replied that it was acceptable provided it was not retroactive, and the company assured him it was not retroactive, but that they had since found his signature to the original contract and therefore they asked for the return of the new agreement. Plaintiff continued in the employment for some time after the transfer, but then left it and now sues for certain renewal commissions falling due after the termination of his agency. Held,-that he cannot recover. It would be absurd to say that plaintiff in objecting to giving to the proposal submitted a retroactive effect meant to object to a provision in it (that relating to termination of interest in commissions on termination of agency) which was-identical with an essential part of the only contract under which he had any right to renewal commissions and which part the company did not propose to -change with respect to future business.

      6. -: Freedom of Contract. Held, that plaintiffs contract of agency for defendant insurance company was one which the parties had a legal right to make and did make, and the court cannot substitute another for it.
    7. REFERENCE: Appeal: No Cause of Action: Nonprejudlcial Error. Where plaintiff bases his right to recovery upon written and printed documents which show that he has no cause of action, he was not prejudiced by error, if there was any, in a reference of the case.
    Appeal from St. Louis City Circuit Court. — Hon. Hugo Muench, Judge. ■
    Affirmed.

      Reynolds & Harlan for appellant.
    (1) The reference in this cause was erroneous, (a) Reference is a matter of purely statutory right, and unless the case in which it is asked or in which it is granted is within the statute, the parties not consenting, the court has no power to grant it. Tool Co. v. Spring Co., 146' Mo. App-. 31; Ice Co. v. Tamm, 138 Mo. 385. (h) As the statute (Sec. 1996, R. S. 1909) is an exception to the right of trial by jury, this court will not extend its meaning; a case should clearly appear to fall within the letter and principle of the statute before a party can be deprived of his jury trial. Ice Co. v. Tamm, 138 Mo. 385; Barger v. Beach, 142 Mo. App. 389. (c) Whether or not a case may be referred over the objections of a party to the suit'must be determined in each case by the pleadings and the issues raised by the parties themselves. Investment Co. v. Bank, 96 Mo. App. 125. (d) In this case the issues are simple, it appearing from the pleadings that the question is not what commissions appellant is entitled to, but whether he is entitled to any commissions, the amount not being in dispute between the parties, or easily.asoertained, and not requiring a complicated or tedious examination of a long account by the jury. Barger v. Beach, 142 Mo. App. 389; Snyder v. Crutcher, 137 Mo. App. 121. (2) (a) Appellant acquired a right to his renewal commissions, the moment a policy was issued, and the termination of his employment by the respondent company did not affect this right. Assurance Soc. v. Brinker, 77 N. Y. 436; Hale v. Ins. Co., 120 N. Y. 294; Ins. Co. v. Nexsen, 84 Ind. 347; Scrimplin v. Life Association, 98 N. W. 613; Heyn v. Insurance Co., 192. N. Y. 1; Perry v. Casualty Co., 72 Atl. (N. H.) 369; Burleson v. N W. M. I. Co., 86 Cal. 342. In all cases the construction to be placed upon the contract depends upon the language of the particular contract in question, and the construction placed upon the same by the parties in carrying out the terms thereof. Cases cited supra under this point, (b) The clauses contained in the various manuals delivered to appellant, his receipt dated January 16', 1803, at East St. Louis, nor the letter of January 5, 1900, so far as the same undertake to limit the appellant’s right to renewal commissions were no part of his contract with the respondent, as the same existed at the time appellant ceased to be the respondent’s agent in 1904, said provisions not being embodied in said contract as it existed in 1904, or referred to therein or called to the appellant’s attention in such manner as to be binding upon him. McDonald v. Life Ass’n, 154 Mo. 618; Railroad v. Stewart, 79 Md. 487; Stocker v. Partridge, 25 N. Y. Sup. Ct. 193; Riley v. Brooklyn, 46 N. Y. 444; Railroad v. Mfg. Co., 16 Wall. 318.; Railroad v. Doyle, 142 Fed. 6691; Hutchison on Carriers, sec. 415:; Page on Contracts, sec. 75; Robinson v. Benevolent Ass’n, 132 'Mich. 695; The Majestic, 166 U. S. 373; Railroad v. Sayles, 87 Fed. 444; Blossom v. Dodd, 43 N. Y. 264; Madan v. Shepard, 73 N. Y. 329; Riordan v. Doty, 50 S. C. 537; Lawson v. Waite, •103 Wis. 244. A writing designed to supersede a former writing is not to be construed in connection with such former one in order to determine the intention of the parties. Overbeck v. Park So Club Ass’n, 17 Mo. App. 310; McClurg v. Whitney, 82 Mo. App. 625.

      Nathan Frank and Richard A. Jones for respondent.
    (1) The court properly ordered reference of the cause. There was involved therein not only an examination and determination of various items; of a long account (Sec. 1996', R. S. 1909), but also a most intricate one. The difficulty, detail and intricacies of such undertaking is in a considerable measure apparent from the allegations of the petition of plaintiff and the evidence fully establishes it. (2) (a) Under the general regulations and rules of respondent applicable to its superintendents, as well as under his express agreement in such regard, appellant was not and is not entitled to receive any renewal commissions after the termination of his employment. King v. Raleigh, 100 Mo. App. 1; Burleson v. Ins. Co., 86 Cal. 342; Jacobson v. Ins. Co., 61 Minn. 330; Scott v. Ins. Co., 103 Md. 69; Stagg v. Ins. Co., 10 Wall. 589; Ins. Co. v. Hollaway, 51 Conn. 310. (b) The evidence of appellant altogether fails to support the burden of proof of establishing a change or modification in the respect suggested of the contract as originally made by virtue of which he was appointed superintendent of respondent; fails to present that definite mutual understanding and meeting of the minds of the contracting parties necessary to form a basis upon which to found an inference to such end. Clark on Contracts, p. 612; Sutter v. Raeder, 149 Mo. 297; Utley v. Donaldson, 94 U. S. 29'; Harrison v. Railroad, 74 Mo. 364; Walsh v. Lurmey, 106 N. W. 447. (c) Not only appellant’s express agreement in such regard but the usages and rules of the business in which employed and all the circumstances connected with the subject-matter involved, rebut the assumption of the existence of an understanding that he should be paid renewal commissions after his employment with respondent was terminated or that there was any understanding, >or modification of the original agreement in such regard. Davis v. Hendricks, 50 Mo. App. 444; Car Co. v. Railroad, 121 Fed. 609; Rockefeller v. Merrill, 76 Fed. 909. (d) The letter of April 6, 1903, simply refers to one element of the matter at hand; that contained in the manual under the head “Commissions” and not to that under the head “Limitations on Commissions” and simply results in a modification to that extent and no more, without in any manner affecting the general agreement contained in respondent’s contract and set forth in the manuals under the last named head. Clark on Contracts, 611; Savings & Loan Co. v. Wackenrender, 111 Cal. 471; Haynes, Spencer & Co. v. Baptist Church, 88 Mo. 285; Ice Co. v. Steam Eng. Co., 22 N. J. Eq. 72; Trust Co. v. Ells-worth, 129 Wis. 349. (3) The evidence in the cause fully supports the finding of the referee and the conclusions drawn therefrom, and the law governing such 'condition of fact was properly applied thereto.
   BLAIR, C.

Defendant is a life insurance company. Plaintiff entered its employ in 1888, and in 1893 became one of its district superintendents and served in that capacity in different districts until August 13, 1904, when his, connection with the company was severed.- He brings this action to recover renewal commissions on premiums on certain life insurance policies., issued during bis superintendency over the St. Louis, North, and the Joliet districts of which he had charge, successively, just prior to his .leaving the company’s service.

There was a judgment for defendant, and plaintiff appealed.

At the beginning of 1803, plaintiff, then an assistant superintendent in St. Louis, Missouri, was made a district superintendent and assigned to the East St. Louis district. His contract as district superintendent related solely to his duties and compensation in prosecuting the industrial branch of defendant’s business, industrial insurance including only policies for less than $500 on which the premiums are paid in small, and usually, weekly installments. Plaintiff claims no right to recover anything under this contract or at all in connection with the industrial business done under his supervision.

Plaintiff testified that at the time he took charge of the East St. Louis district he signed the following:

“Ordinary Department. East St. Louis, Jan. 16, 1893. To the Metropolitan Life Insurance Company: I hereby acknowledge that I have received your circular letter of March 1, 1892, containing the manual for the use of the agents of the ordinary department of your company, by which I am appointed an agent of the ordinary department. I accept the appointment and agree to be bound in all respects both as to services, and compensation and as to the conduct of my business as ‘ordinary’ agent by the terms of the said circular and manual; and I further agree to obey and abide by all the rules therein contained, and all of the amendments thereto and alterations thereof which hereafter may be made by you, including any and all changes and modifications thereof as to duties or as to compensation; and I agree faithfully to conform to-all the rules and regulations of the company in its ordinary department as they are or may hereafter be made. I also agree that my employment and duties .as agent of the ordinary department shall terminate whenever I shall cease to be a superintendent of the industrial department of the company, and that upon such termination all my interests in commissions and fees as ordinary agent shall cease, and that the amount of money that I have received from the company in the ordinary department at the date of the termination of my agency as aforesaid, shall be in full payment and satisfaction of all my services, commissions and fees as agent of the ordinary department. W. E. Arensmeyer, Agt. ’ ’

Subsequently plaintiff was transferred to Joliet, thence to Buffalo, N. Y., and thence, on October 1, 1899, to the district designated “St. Louis, North,” whence he was transferred, February 2, 1903, again to Joliet,, and there his connection with the company ceased, August 13,1904.

The renewal commissions now involved are those accruing after August 13, 1904, on premium payments on policies issued after October 1, 1899, in the St. Louis, North, and Joliet districts, the petition alleging the payment to plaintiff of all others to which he was ever entitled.

In the manual issued by defendant March 1, 1892, for the use of its superintendents appeared the following provisions:

“Commissions. — The following commissions will be paid: On the first year’s premiums, fifty per cent on ordinary life policies — life with return of premium policies — and expectation of life policies; forty per cent on life with increasing insurance policies — life policies with payments limited to fifteen and twenty years — and endowment policies for a term of fifteen years and over; fifty per cent on life policies with payments limited to ten years and endowment policies for a term of ten years; on renewal premiums (i. e., premiums after the first year) ten per cent on all forms of policies for a period not to exceed five years. After the fifth year’s renewal premium is paid the agent’s interest in and commission on the business ceases.
Limitation on Commissions. — When, through his transfer or any other reason, a superintendent leaves the district in which he has procured business, or in the event of his retirement from the service of the company, or if the insured remove into a district outside of the city or place where such superintendent is employed, his commission in said business will there-’ upon cease and determine. But in whatever district a superintendent may be placed he will be entitled on premiums collected and remitted by Mm on tbe business in such district, to all tbe first year’s and renewal commissions to wMcb Ms predecessor would have been entitled bad be been continued in tbe district. On premiums collected on business written before January 1, 1888, tbe superintendent who makes such collections will be entitled to a fee of 2¿ per cent. ’ ’

Tbe 1895' edition of tbe manual contained identical provisions as to limitations, on commissions.

January 5, 1900, defendant sent to its superintendents, including plaintiff, a letter expressly revoking that part of tbe manual under tbe beading “Limitation on Commissions,” and maHng somewhat different provision concerning that matter and in respect to commissions in the contingency of the transfer of policies from one district to another and of the transfer of superintendents from one district to another, but expressly providing “that in no event will the interest of a superintendent in the renewal commissions on policies, either written wMle in charge of the district, or acquired by reason of transfer, survive his position as a superintendent for the company. Whenever his superintendency ceases, whether through resignation, dismissal, or because of his accepting another position in the company, all his interest in the renewal commissions ceases and determines.”

This letter plaintiff first testified he had no doubt he received in the regular course about January 5, 1900, but afterward he qualified this statement.

By general letter March 8, 1900, which plaintiff received, defendant, among other things, wrote: “3. We take this occasion to readjust the renewal commission schedule on a plan which will encourage you to' keep the business persisent. While, by the new schedule, the total renewal commissions paid by us are greater than under the old schedule, they are more equitably distributed, and they furnish inducements. for careful placing of business and the keeping of it in force by superintendents.”

The new renewal schedule, beginning April 1, 1900, is as follows: “On all policies thereafter written, except those on the twenty-payment life with forty per cent reduction and the endowment at age eighty plans, the renewal commission will be 74 per cent for nine years. The renewal commission on the twenty-payment life with forty per cent reduction will remain ten per cent for four years and on the endowment at age eighty at per cent for five years, as heretofore. ’ ’

In the edition of the manual for 1901, for whicli plaintiff’s receipt in writing was. in evidence, section 111, under the heading “Commissions,” reads as follows:

“111. Tour interest in renewal commissions ceases with your discontinuance as superintendent. If, however, you are transferred as superintendent, to another district, an adjustment of your renewal interest in the district you leave, and on the business in force in the district you assume, will be made. The terms of such adjustment will be communicated to you when such transfer takes place.”

Under date of January 17, 1903, defendant advised plaintiff it intended to transfer him to Joliet, giving its reasons therefor and saying to him his salary under his industrial contract would be unchanged and that he would retain an equitable interest in the ordinary business created by him in the St. Louis, North, district, and would acquire a reasonable interest in the renewals on the business in force in the Joliet district.

After the exchange of another letter or two, plaintiff wrote conceding his record for a year or so had not been all he had hoped and saying he “accepted the situation as' gracefully as any human being could' under the same circumstances.” In none of his letters in this connection did plaintiff mention renewal commissions, question plaintiff’s right to make the “equitable arrangement” it proposed or demand or request advice of the particulars of that arrangement prior to agreeing to accept a transfer to Joliet.

The transfer was recorded as. of effect February 2, 1903, and plaintiff was advised of this but given a vacation until April 6, 1903. This leave of absence, it was agreed, was not to affect his right to renewal commissions during its continuance. Immediately after plaintiff took actual charge of the Joliet district, April 6, 1903, defendant wrote him stating the renewal commissions to which he would be entitled on business in force in the Joliet district on February 2, 1903, and also on business created by him in the St. Louis, North, district between October 1,1899, and January 24,1903. At the same time defendant enclosed for plaintiff’s signature an agreement identical with that of January 16, 1893, and including a statement of all commissions allowed, whereby the renewal commission period was, on most policies, reduced from nine to seven years.

To this plaintiff replied stating the agreement was acceptable provided it was not intended to apply to business secured by him or his agents prior to February 2,1903.

In answer defendant’s superintendent of agencies wrote that the agreement was not intended to be retroactive but that since sending it plaintiff’s previous acknowledgment of the receipt of the manual had been found and it was unnecessary for him “to complete the circular letter referred to” and asking its return.

In 1904 during the interchange of correspondence concerning plaintiff’s retirement from defendant’s service, he made no reference to any claim to renewal commissions after his retirement but commented upon the fact that he did not know what he would do unless the company would assist him in some way, and wrote that he was “aware the executives, have dealt most liberally with others and I know that I may safely commit my case to their generosity.”

Ten days after his. retirement he wrote defendant suggesting that he was not physically able to perform the duties of assistant superintendent, which position defendant had indicated it would give him-, and saying he desired to locate in the suburbs and if defendant “would grant him a small pension” he could do this,, having saved enough money to buy a home.

In reply defendant offered “as a mark of esteem”' to make plaintiff an allowance of twenty-five dollars per week for one year on the understanding that “at the end of one year this allowance will cease and that we shall not feel called upon to make other provision for you.”

In answer plaintiff wrote that after receiving the letter last mentioned he had consulted counsel and placed all the facts before them “and particularly clause 111 of the ordinary department manual,” and on their advice he refused the allowance offered unless the annexed condition was qualified so it would not include renewal commissions, to which he asserted a claim and which he formally demanded. He had previously, without protest, accepted, in September, 1904, payment of renewal commissions for August, 1904, in the sum of ninety-two dollars, being such commissions as accrued between August 1 and August 13, 1904, when he left defendant’s employment.

The right of defendant to dispense with plaintiff’s services as superintendent at any time is, conceded and no complaint of any ldnd is made because it did dispense with them.

The sole question on the merits is whether plaintiff is entitled to any renewal commissions on premium payments, falling due and made after he retired from the company’s service, August 13, 1904. The brief is principally devoted to this phase of the case. Complaint is also made of the court’s action in referring the cause.

I. Plaintiff expressly admits he executed the instrument dated January 16, 1893, whereby he accepted employment in the “ordinary department” of defendant company’s service but contends that (1) under a proper construction of that contract, if in force, he is entitled to recover; and (2) that contract had been superseded by another under which he is entitled to judgment.

1. That there could be no recovery under the contract of January 16, 1893, is too plain for argument. By it plaintiff expressly agreed that the termination of his employment as superintendent in the industrial department, should, ipso facto, terminate his employment as agent of the ordinary department, and that upon the termination of such agency all his interest in commissions and fees should cease, and that the moneys theretofore received as such agent should be “in full payment and satisfaction of all . . . services,, commissions and fees as agent of the ordinary depart-mt.” He pleads the termination, August 13, 1904, of his employment as district superintendent in the industrial department. That fact, under the contract of January 16, 1893, ended his right to renewal commissions which otherwise would have accrued after August 13, 1904, and in his petition plaintiff alleges that all renewal commissions which accrued prior to that date had been paid him.

A somewhat similar question arose in King v. Raleigh, 100 Mo. App. 1, and Judge Goode, with the concurrence of Judges Bland and Barclay, held, in an able opinion, that renewal commissions on premium payments made after the termination of the agency were not recoverable. Numerous cases are cited. The contract in that case did admit of some doubt, as stated in the opinion, and, in that respect, was- wholly unlike that in this. case. There the conclusion was reached by construction. Here the language of the contract is clear and explicit.

The last paragraph of the opinion in Burleson v. Ins. Co., 86 Cal. 342, is squarely in point and in accord with our conclusion in this case. In citing this case in King v. Raleigh, the court probably had in mind a previous part of the opinion.

The principal cases cited as. supporting a contrary view are Hercules Mut. L. A. Soc’y v. Brinker, 77 N. Y. 435 ; Heyn v. Ins. Co., 192 N. Y. 1; Insurance Co. v. Coleman, 118 Tenn. 215.

In none of these cases was there, as there is in this, a provision expressly terminating the agent’s right to renewal commissions upon the termination of-his employment with the company. In each of those cases the court deciding it reached the conclusion that the contract did not-so provide. Here there is no room for construction — no ambiguity of any sort.

Under the contract of January 16, 1893, plaintiff had absolutely no right to any renewal commissions save those accruing prior to August 13,1904, and these his petition alleges have been paid to him.

2. It is contended the letter of March 8, 1900, modified the contract of January 16; 1893, and that under the contract as modified by it plaintiff ought to have judgment. All that part of the letter by any possibility relevant in this connection' is set out in the statement. There is nothing.in this letter evincing any intent to supersede or abrogate that part of the contract of January 16, 1893, terminating renewal commissions upon the termination of plaintiff’s superintendency. As held on an identical question in a similar case (Jacobson v. Ins. Co., 61 Minn. l. c. 333) the modification of premium rates by the letter of March 8, 1900, “must be construed with reference to all the-terms of the contract, and the purpose for which such commissions were paid. The manifest intention was to make the right to a commission on renewal premiums dependent upon a continuation of plaintiff’s services. ’ ’

In the contract of January 16', 1893, plaintiff expressly agreed to be bound by the “Manual” for superintendents, “both as to services and compensation,” and also expressly agreed he would “obey and abide by all the rules therein contained, and all the amendments thereof which may hereafter be made by you, including any and all changes and modifications thereof as to duties or as to compensation.”

By this stipulation plaintiff expressly authorized defendant to change renewal premium rates under the contract as to policies written after the change, at least, and defendant made no attempt to exercise that power as to any other. It would be novel if a change which plaintiff expressly contracted might be made respecting his compensation wiped out the contract itself and freed plaintiff of all his other contractual obligations to the company. The change was made pursuant to the contract and in furtherance of it and was accepted by plaintiff and acted upon without any suggestion from him that he thought it of other significance than its plain language indicates.

3. Another insistence is that when defendant, upon transferring plaintiff from St. Louis: to Joliet, February 2, 1903, wrote him that he would retain an equitable interest in renewal premiums on business in the St. Louis district he was leaving and acquire a like interest in like premiums on business then in force in the Joliet district he was entering, and followed this by specifying the equitable interests he would so retain and acquire, plaintiff’s right to the interests and commissions specified vested, and, therefore, he should recover.

This adjustment of plaintiff’s rights in renewal commissions in his old and new districts was accepted by him without protest, and he, of course, does not in his pleadings or elsewhere question defendant’s right to make it.

That adjustment has nothing in it tending to overthrow the contract of January 16, 1893, but was, of ' course, made in anticipation of plaintiff remaining in defendant’s service. There was nothing connected with it indicating a modification of the contract provision that plaintiff’s renewal commissions» would eease upon the termination of his agency. The letters of January 17 and April 6», 1903, like that of March 8-, 1902, and for like reasons, must be construed in connection with the whole contract, if they are to be construed as bearing any relation to the contract at all.

4. But it is also contended that the “equitable adjustment” referred to really constituted the consideration of a new contract superseding the old and under it plaintiff should have judgment. Reliance is placed upon Perry v. Casualty Co., 75 N. H. 199.

In that case the court said that the question for consideration by it was simply whether “there was any evidence” of a waiver by the company, under either of two contracts, of a provision terminating renewal commissions upon the termination of the agency.

In a letter in evidence in that case the company expressly waived the provision under the first contract on condition that the agent would execute the second contract and re-enter the company’s service.

In this case there is no sort of showing that plaintiff conditioned his acceptance of a transfer upon anything the company might or might not do respecting renewal commissions. He did not know or even inquire, prior to taking charge at Joliet, what arrangement would be made. He does not plead any contract to remove to Joliet in consideration of the adjustment made. This is an afterthought.

5. The submission to plaintiff by defendant for his signature, April 6,1903, of a receipt for the manual of 1901, identical in form with the receipt and contract of January 16, 1893, and the correspondence relating thereto did not change the situation. • Concurrently defendant proposed a change in the renewal commission period. Plaintiff’s objection to signing simply meant he wished it understood the change should not be retroactive. There was no change submitted except in the reduction of the renewal commission period. In all other respects the provisions, in the documents submitted for signature had been in full force and applied to all past business. There could be no retroactive effect ascribed to any of these provisions other than that with respect to the renewal commission period for it was the only one which indicated a change in the previous arrangement. It would be absurd to say plaintiff in objecting to giving to the proposal submitted a retroactive effect meant to object to a provision in it which was identical with an essential part of the only contract under which he had any right to renewal commissions and which part the company did not propose to change with respect to future business. His objection, of course, pertained to changes proposed, and defendant agreed with him that no retroactive effect was intended to be given the new arrangement.

Further, in the letter in which it was stated the proposal related solely to future business, defendant also wrote it had found plaintiff’s previous receipt for the manual and added that plaintiff need not, therefore, sign that sent April 6> 1903. That receipt was the document under date of January 16,1893, and was, as stated, identical in form with the receipt for the manual submitted in 1903 with the proposed change in the renewal commission period. It must be conclusively presumed plaintiff knew what his contract with the defendant was and knew in what respects it resembled the one submitted. He therefore, knew defendant was relying upon the agreement of January 16, 1803, in connection with the modifications submitted as to new business and relying upon that document and former rates as to old business. He made no objection to the applicability of the contract of January 16, 1893, to either his previous or future business but knowing defendant considered it a constituent part of all arrangements with him, continued in its service without objection. There is nothing in this phase of the case which affects the applicability of the contract of January 16, 1893.

6. It is suggested the contract is a harsh one. It is the one plaintiff made. Defendant would seem to have been as anxious for plaintiff’s success as was he- it was only through successful superintendents defendant could succeed. To secure business and keep it in force was defendant’s purpose and to that end it employed plaintiff. The contract he signed when he accepted the employment was designed to spur him to the accomplishment of both objects. His success meant defendant’s success in his district and, naturally, his retention in defendant’s service. His failure would result in his discharge and open the way for the employment of a successor on terms which would arouse in him an interest in keeping the old business persistent. The contract was one- the parties had a legal right to make and did make, and the courts cannot substitute another for it. [Stagg v. Ins. Co., 10 Wall. l. c. 502, 593.]

II. It is insisted the court erred in referring the case. On the pleadings the issue as to the amount of the recovery would have involved’ an examination of defendant’s books with reference to every policy between ÜC' tober 1, 1899; and January 27, 1903, and a like examination as to policies written in the Joliet district between February 2, 1903, and August 13, 1904. As to premiums paid on such policies between August 13, 1904, and the date the suit was filed, January 12, 1905', the question would have been as to the renewal commissions on actual payments already made. With respect to the. renewal commissions on premiums paid subsequent to January 12, 1905, the matter would perhaps have been one for expert testimony, as to the time from the date of the trial forward, at any rate. [Lewis v. Ins. Co., 61 Mo. l. c. 539.]

The propriety of the reference in this case in so far as it was based upon the necessity of examining long tabulations of renewal commissions upon premiums paid when suit was begun is affirmed by Hibbard v. Ins. Co., 4 Delehanty (Misc. Rep.), 422; which ruling was. affirmed in 141 N. Y. 549.

So far as concerns renewal commissions on premiums falling due after the trial, if such alone had been involved, there is authority in this State against the right to refer over exception. [Thornton v. Ins. Co., 7 Mo. App. 544.]

In this ease the court did appoint a referee, and the evidence was taken. The original contract, admittedly signed by plaintiff, is in evidence. The only modifications which plaintiff contends, or could contend, affected his relation to the company are in writing and in evidence. He put in his whole case before the referee and, in this court, grounds his right to a recovery upon written and printed documents. These, as appears from what has been said, demonstrate he has no cause of action.

What sense would there be in reversing this judgment, because the case was referred, and remanding the cause for trial by a jury, there being no cause for a jury to try?

Had the trial court merely refused to impanel a jury and, over plaintiff’s, objection, heard the case itself, this court would not think of sending it back for the mere purpose of having- the trial court impanel a jury which he would have to tell, when the evidence was in, that there was no case to try (Wolff v. Campbell, 110 Mo. l. c. 120, 121; Hite v. Railroad, 130 Mo. l. c. 141) and, therefore, never any actual reason for impaneling them at all.

The question of liability in this case depends upon the application of the law to a certain contract plaintiff admits he executed and certain documents upon which he founds his claim. These demonstrate he has no case. He was not prejudiced by the reference since the documents in evidence demonstrate he has no case which could be submitted to a jury or court for trial. The judgment is affirmed.

Brown, C., concurs.

PER CURIAM.

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

All the judges concur.