author: WOODSON, J. GRAVES, J.

text:
    EDWIN S. PULLER v. ROYAL CASUALTY COMPANY, Appellant.
    Division One,
    July 2, 1917.
    1. EVIDENCE: Company’s Business State: Identification of Secretary’s Statement, A statement purporting to be a summary of the secretary’s statement of .the receipts and disbursements of the company during a definite period, where no witness testifies that either the statement or summary is correct,'is not admissible in evidence.
    2. -: -: Contract of Employment: Future Success. It can. not he laid down as an unqualified rule that the future success or failure of a corporation just beginning business cannot affect the validity or fraudulent character of a contract of employment entered into at the beginning of such business. Under some circumstances a contract promising a salary out of all proportion to the company’s capital and its business prospects might, as a matter of law, be declared unreasonable, unjust and oppressive, indicating upon its face fraud and a breach of trust. Under others, it would not he declared unreasonable -or void without the strongest, evidence of fraud on the part of the officers of the company. Under others, the consideration cannot be confined to the contract alone, but it alleged to be unreasonable and fraudulent proper evidence of the company’s capital, surplus, and all other facts and circumstances is competent in support of the allegation.
    3. CONTRACT OF EMPLOYMENT: Agreed on Before Incorporation of Company: Fraudulent: Burden of Proof. A contract of employment, agreed upon by officérs of an existing insurance company about to be consolidated with a new company to be oganized, that being holders or controllers of a majority of the stock of the new company, they would elect themselves and others directors and that the board of directors would elect them officers at designated salaries, is prima-facie valid, and the burden of proving it fraudulent and void is on the company when it is sued for the balance of the salary due under the contract; and such fraud is not shown if all the persons connected with the two companies are shown to have fully understood what the expectations of the officers were and the directors voted to fix their salaries at the terms stated in the prior agreement between the officers.
    4. -: Longer Than Term of Directors. A corporation may make a contract of employment for a longer period than the term of office of its directors. Fraud is not to be inferred, from a contract employing a stockholder for a term of four years to be the counsel and manager of the claims department of an insurance company whose directors were elected annually.
    5. -: Discharge: Reduction of Salary Made in Mutual Consideration With Others: Amount of Recovery. Where the plaintiff and the other general officers concluded that the business of the corporation did not justify the salaries called for by their contracts and mutually agreed with each other to relinquish a certain per cent thereof and from that time forward all of them collected their salaries monthly less said reduction, the plaintiff, upon being wrongfully discharged before the expiration of his contract, cannot recover for past months the amount of such reduction thus made in consideration of the mutual reduction of the others.
    6. -: Discharge Before End of Period: Amount of Recovery for Subsequent Months: Interest. Where plaintiff by the terms of his contract of employment was to receive a definite sum per month, to be paid in monthly installments, he can, upon his discharge without cause before the end of the contract period, recover for the installments not due at the date of the judgment, in an amount equal to their present worth on that date, calculated at six per cent annual interest. Their present worth means the amount of each monthly installment reduced by interest to its present value.
    Appeal from St. Louis City Circuit Court. — Hon. George C. Hitchcock, Judge.

      Reversed and remanded (with directions).

      F. H. Bacon for appellant.
    (1) Directors of a corporation sustain a fiduciary relation and are trustees, as well as agents, for the stockholders. They are hound to exercise the utmost good faith and contracts between the directors and one of their number are always subject to review and if not absolutely void are voidable if unreasonable, unfair, or produced by the influence of the director contracted with. 9 Cyc. 787; 3 Cook, Corp., sec. 658; 1 Morawetz on Corp., see. 516; Land Co. v. Case, 104 Mo. 572; MeNab v. Mfg. Co., 62 Hun, 18, 133 N. Y. 687; Davis v. Davis, 120 N. Y. Supp. 350,135 App. Div. 206; Carney v. Ins. Co., 162 N. Y. 473, 49 L. R. A. 471; Beers v. Ins. Co., 66 Hun, 75, 20 N. Y. Supp. 788; Higgins v. Lansingh, 154 111. 301; Adams v. Burke, 201 111. .399; McNulta v. Bank, 164 111. 427. If the vote is really the influence of the officer benefitting thereby, it is void. Greathouse v. Martin, 100 Tex. 99. (2) The burden of proof is on a director who has had dealings with his fellow directors of a corporation to show that the contract is fair. If it is not fair, it is incapable of ratification. 2 Thomp. on Corp., sec. 1231; Laird v. Lubricator Co., 153 Mich. 52, 17 L. R. A. (N. S.) 177; Camacho v. Bank Note Co., 2 App. Div. 369, 37 N. Y. Supp. 725; 3 Cook, Corp. (7 Ed.), see. 649; Pollitz v. Railroad, 207 N. Y. 113. (3) The contract sued on is materially different from that authorized by the resolution of the directors in that it provided that plaintiff should only give a portion of his time to the service of the company. (4) .The alleged contract was clearly made in order to forestall the action of any future board of directors. It covered a period of four years, whereas the directors making the contract were elected for one year only. This contract under the circumstances was in pursuance of a conspiracy on the part of plaintiff and his two associates in their own interest and was therefore void, or, if not void, was voidable. (5) The court wrongfully excluded the statement of the business of the company which was offered for the purpose of showing the unreasonableness of the salary voted plaintiff and as a circumstance tending to show that the contract sued on was not entered into in good faith. (6) The judgment is excessive, even admitting that the contract sued on was valid. (a) The original agreement provided that while the salaries were to continue for the three parties, plaintiff, Sutton and Pickrell, for four years, the salaries might he reduced if in their judgment it was necessary to enable the company to pay the dividend. The three after consultation, by mutual agreement, did reduce their salaries, made a gift of the excess to the company, and yet in the first count of his petition the plaintiff claims that the payment of the reduced rate was not binding upon him. If the reduction was made by the three in mutual consideration of the reduction by the others, or if the difference rebated was a gift to the company, it cannot be recovered in this action. Riera v. Metal Co., 134 App. Div. (N, Y.) 497. (b) Plaintiff was discharged March 8, 1911, at which time the alleged contract had two years to run. He brought suit March 16, 1911, eight days thereafter, and claimed the entire salary for the two years unexpired term of the contract at the full rate, together with interest from the date of the filing of the suit on the theory that although his salary was payable in monthly installments the discharge made the entire amount at once due and payable. No allowance was made for earnings of plaintiff during the future period and it could not be known what the amount of such earnings would be.

      ■ Schnurmaclier & Bassieur for respondent.
    (1) While the services of a director in the line of his duties as such are presumed to be gratuitous, the directors may bind the corporation by a contract for employment of an officer, agent or employee, notwithstanding that such employee is also a director. Coal Co. v. Watson, 107 Mo. App. 451; Taussig v. Railroad, 166 Mo. 28; Funsten v. Com. Co., 67 Mo. App. 557; 2 Thompson on Corp. (2 Ed.), sec. 1747; Wickersham v. Crittenden, 110 Cal. 332; Clark v. Coal Co., 86 Iowa, 436, (2) The presumption of law is that the president of the corporation was acting within his authority and that the contract was regular and valid. Jones v. Williams, 139 Mo. 1; Coal Co. v. Watson, 107 Mo. App. 451. (3) Appellant relies on the agreement between the three promoters to fix, or to attempt to fix, their salaries, subject to the decision of the board of directors, as being unlawful in itself. Such is not the law. Authorities cited under point one; Fillbrown v. Hayward, 190 Mass. 472. (4) A corporation may, by formal vote of its board of directors, or by any suitable act, the same as an individual, ratify an agreement made by its promoters. 3 Cook on Corp. (6 Ed.), sec. 707, p. 2212; Bond v. Pike, 111 N. W. (Minn.) 916; Pittsburgh Co. v. Quintrell, 91 Tenn. 693; McDonough v.'Bank, 34 Tex. 309; Battelle v. Northwestern Co., 37 Minn. 1889; Browning v. Company, 5 II. & N. 856; Mesinger v. Mesinger Co., 44 N. Y. App. Div. 26; Chase v. Redfield Co., 12 S. D. 529; Coal Co. v. Watson, 107 Mo. App. 451. (5) A corporation may make a valid contract of employment for a longer period than the tenure of office of its directors. Jones v. Williams, 139 Mo. 1. A contract for “permanent-employment” is not illegal. Revere v. Copper Co., 15 Pick. 351; Hobbs v. Elec. Co., 74 Mich. 550; Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Lead Co. v. Kimlin, 47 Neb. 409. A contract that employment should be steady and constant as long as plaintiff should do his work properly, the consideration for which, in part, was a settlement for personal injury, is valid. Harrington v. Cable Ry., 60 Mo. App. 223; Retzer v. Packing Co., 58 Mo. App. 264. A contract for employment for life under the above conditions was upheld in Boggs v. Laundry Co., 86 Mo. App. ,616. Even a contract of a corporation imposing an obligation in perpetuity will be upheld, where the intention to do so is unequivocally expressed. Printing’ Co. v. Compendius Co., 150 Mo. App. 391. (6) A corporation cannot take advantage of an agreement among its officers to accept a reduction in salary, which agreement has not been communicated or assented to by them. Thompson Co. v.-Brook, 14 N. Y. Supp. 370. Such agreement must be with the company and not among the promoters. Bank v. Elliott, 55 Iowa, 104. The payment of a part of an undisputed debt cannot liquidate the whole. Head v. Ins. Co., 241 Mo. 403; Wetmore v. Crouch, 150 Mo. 671; Swofford v. Goss, 65 Mo. App. 55; Klausmann v. Schoenlau,' 32 Mo. App. 357. (7) Respondent’s damage for breach of his contract is, prima-facie, the amount promised to be paid him-by the contract. Tenzer v. Gillmore, 114 Mo. App. 210; Ross v. Pants Co., 170 Mo. App. 291; Boland v. Quarry Co., 127 Mo. 520. (8) The court rightfully excluded the alleged statement of the defendant, first, because it was not identified by any witness nor testified to as being correct; and, second, because the future success or failure of a corporation just beginning business cannot affect a contract entered into at the beginning of such business. Whether it turns out to be advantageous or disadvantageous to the company is immaterial. Trendly v. Traction Co., 241 Mo. 73. •
   WOODSON, J.

The plaintiff brought this suit in the circuit court of the city of St. Louis against the defendant, to recover á balance of $1,233.86 salary, alleged to be due him under a certain contract made by them on March 22, 1909, and for the sum of $12,203.22 damages, claimed for an alleged breach of said contract. The petition was in two counts; the first was for the recovery of the salary, and the second for the damages for the breach thereof. The trial resulted in a judgment for the plaintiff for the sums sued for and interest, amounting to $14,316.-42. After ineffectually moving for a new trial and arrest of judgment, the defendant appealed the .cause to this court.

The first count of the petition in substance alleged that the plaintiff and defendant, on March 22, 1909, entered into a written agreement whereby the latter employed the former as general counsel and manager' of its claim department for a period of four years from said date, at $350 per month for the first year, $450 per month the second year, and $500 per month for the third and fourth years; that immediately after the contract was made he entered upon the performance of his duties and continued to perform them until March 7, 1911; that according to the terms of the agreement, defendant became indebted to him for snch services in the sum of $9,400.53, on account of which it paid him $8,166.67, and judgment is prayed for the balance of $1,233.86.

The second count alleges the same contract and performance by plaintiff until March 7,1911, and on that day the defendant wrongfully discharged him, without cause, and a refusal to further permit plaintiff to render the services covered by the contract. The prayer was for judgment in the sum of $12,203.22.

The answer consists of a general denial; an admission that the .contract set forth in the petition was signed by defendant’s president, J. D. Sutton; a denial that it was authorized by the board of directors in the form in which it was executed; that the directors were elected for only one year; that notice of a special meeting of the board, to be held March 22, 1909, was given to all of the directors, except Fred Opp; and that the object of the meeting stated in the notice was, among other things, for the purpose of fixing compensation of officers and employees. That the contract was executed by plaintiff and said Sutton in pursuance of a conspiracy and unlawful agreement between the plaintiff and said Sutton and divers other officers and directors at that time of the defendant, whereby the earnings of said company were to be absorbed by them individually, in fraud of the stockholders under the guise of salaries. Tha-t defendant at the time of ..the execution of the alleged contract was an accident insurance company with a capital stock of one hundred thousand dollars, and a surplus of twenty-five thousand dollars, with certain directors, nine in number, who had been selected and elected by the plaintiff and one Pickrell and Sutton, either owning or controlling the majority of the stock. That the directors, had been elected for a period of one year from the 20th day of March, 1909; that a special meeting of the board.of directors was called to be held on March 22, 1909, of which notice was given to all the directors except one, the object of the meeting'being as stated for the purpose of fixing compensation of officers and employees. That previous to the incorporation of said company plaintiff, Sutton and ' Pickrell entered into an agreement in substance reciting their intention of organizing the company and it was agreed between the said three persons that they should be directors and officers of the-company and control its affairs through themselves and other persons, who should be nominated as directors by them and who should be subservient to and dominated by them; that said Sutton was to be president for four years and the salary to be drawn from the said company for a period of four years by him, ás president, should be at the rate of $300 per month; that said Pickrell should be secretary, and-plaintiff general counsel for four years and during the first year of said term the salary of said Pickrell as secretary and said plaintiff as counsel for the same length of time should be at the rate of $350 per month, and at the rate of $450 per month each during the second year of said term, and at the rate of $500 per month for the third and fourth years of said term. Said agreément contained the following provision: ‘ ‘ Provided, however, that the f oregoing salaries may be reduced if in the judgment of the parties hereto a reduction be necessary, or advisable, in order to pay a reasonable rate of dividends on the capital stock of said company.”

Appellant averred that said agreement was entered into for the purpose of forestalling the action of any future board of directors by making a contract for the term of four years, and binding the corporation by action of its board of directors elected at the organization of said company for a period of one year by the dominating influence of the three persons mentioned; that on March 22, 1909, in pursuance of the said notice of said special meeting, eight directors were present, one not being present, nor notified, and that at that meeting resolutions were adopted in pursuance of the said agreement; that in the resolutions so adopted no provision was made for the reduction of salaries in case a dividend was not earned on the capital stock: At this meeting it was resolved that the company enter into a contract with plaintiff as manager of the claim department and counsel for four years from March 22nd, at a salary of $350 per month for the first year, $450 per month, for the second year and $500.for the third and fourth years of said term, payable monthly. Such ¿resolution was adopted in pursuance of the said conspiracy. That thereupon the alleged contract was executed, but that it was not in accordance with said resolution in that it provided that plaintiff should only devote as much time as should be necessary to the discharge of said duties, the remainder of his time, if any, to be devoted to his private interests; that all the said salaries were grossly excessive and unreasonable, especially so far as plaintiff was concerned, in that the said company was in receipt of a gross income not exceeding on an average $5,000 per month, including interest; that the claims made against the company were usually for small amounts, averaging three or four per day and not requiring expert attention; that only three or four suits per year were- brought against the company and usually other attorneys were employed for the conduct thereof; that the services called for in the said contract were not worth at a fair valuation more than $75 per month, which plaintiff knew at the time the contract was entered into; that plaintiff engaged in other business during the time covered by said contract. The answer also avers that the method of conducting the business of his department by plaintiff was detrimental to the company; that for the reasons stated the contract was null and void, because substantially made by a trustee with himself; because the amount agreed to be paid was grossly excessive; that it was unauthorized by the company, and that on March 7, 1911, plaintiff’s. services were dispensed with.

A cross-petition was filed which practically sets up the same facts, and also the alleged contract sued on by plaintiff; avers that $8,166.67 was paid plaintiff under the contract; that said contract was void and asked judgment for said sum against the plaintiff.

The pleadings and evidence introduced by the plaintiff made a prima-facie case for him; and thereupon the defendant assumed the burden of proving the charges of the answer and cross-bill.

On cross-examination the plaintiff identified a preliminary contract dated February 26, 1908, entered into between the plaintiff, Sutton and Pickrell, which was afterwards offered in evidence by defendant. The witness stated that it was intended by the parties to this agreement to control the company by getting proxies; that at the first meeting for organization the three persons named in this preliminary agreement held proxies for 216 shares. Mr. Pickrell owned forty shares, Sutton owned 335, and plaintiff had 123, making a total of 714 shares out of the total number, .1,000. The plaintiff and Mr. Pickrell were at that time officers of an existing association, known as the Royal Fraternal Union, which had on hand about $16,-000 in cash and a going business which was to be taken over by the Royal Casualty Company. The witness did not figure that the good will of the Royal Fraternal Union had been secured by his and Pickrell’s efforts, nor that the Royal Fraternal Union had any good will, although it had agents, policyholders and assets. The plaintiff testified that in April, 1910, the corporation ceased to pay him the full salary of $450 per month. The contract was at that rate and $350 was paid. The plaintiff said: “I made a reduction voluntarily; it was done at my suggestion and the suggestion of Mr. Pickrell. Mr. Sutton at first objected, but finally agreed to make a reduction in his salary. The difference between what was paid to me during those months of April, May and June, up to.and including March, 1911, is the amount sued for in the first count of the petition, but not altogether.”

The defendant’s evidence showed that approximately $18,000 was the amount of expenses of the company during the organization period and fifteen per cent was the amount allowed by resolution' of the incorporators for commissions on the stock. ' Each subscriber paid on each share of stock $100 and $25 on account of surplus, and Mr. Sutton, Mr. Pickrell and witness each kept fifteen per cent of their individual subscriptions because authorized by the resolution. The plaintiff was chairman of the organization committee. There were thirteen incorporators, of whom five or six out of the thirteen took stock or subscribed stock. Tbe witness admitted that under the resolution adopted by the directors nothing was said about his giving only as much time to the company as was necessary, but that provisión was included in the contract because 'there was talk to that effect at the meeting of the directors.

The defendant offered in evidence the charter of the defendant, which was in the usual form. Also the record of the first meeting of the stockholders, at which certain by-laws were adopted, and called attention to two certain •by-laws in particular, one of which provides for the annual meeting of the shareholders to be held on the first Tuesday of February each year beginning in 1910, at which nine directors shall be elected to hold office for one year or until their successors are elected; that the regular quarterly meetings of the board of directors shall be held on the first Tuesday of February, May, August and November, and that special meetings of the board may be called at any time without notice by unanimous consent, or otherwise by ten days’ notice. By another of the bylaws it was provided that the board of directors shall have the authority to contract with officers and employees for their services and fix their compensation.

Defendant offered in evidence the record of the first stockholder’s meeting showing the election of nine directors (the number having been reduced from thirteen to nine), and the record of the meeting of the board of directors at which officers were elected, which shows that in accordance with the previous understanding Mr. Sutton was elected president, plaintiff first vice-president and counsel, and Mr. Pickrell secretary and treasurer, for a period of one year. The defendant offered in evidence the record of the adjourned meeting of the board of directors held March 22, 1909, which was a special meeting, at which three resolutions were adopted, the first that a contract be entered into with Pickrell as superintendent at a salary of $350 per month for the first year, $450 per month for the second, and $500 per month for the third and fourth years. This motion was made by Director Hellmuth, seconded by Van Nort, Mr. Pickrell not voting. The second resolution authorized a contract with plaintiff as manager of the claim department and counsel for a period of four years from the 22nd day of March, 1909, at a salary of $350 per month for the first year, $450 per month for the second year, and $500 per month for the third and fourth years. This motion was made by Director Pickrell, seconded by Yan Nort, Mr. Puller not voting. The third resolution fixed the salary of Mr. Sutton as manager of commercial agencies and agents for four years at a salary of $300 per month, Mr. Sutton not voting. Fred Opp testified that his name appeared as a director, but he had never accepted the office; that he had received no notice of the meeting, did not know there was á meeting; that he was out of the city much of February and March.

The defendant offered in evidence the agreement of February 26, 1908, between Pickrell, Sutton and Puller. Also the record of the meeting at which the services of the plaintiff were dispensed with, held March 7,1911.

The defendant offered in evidence a statement of the business of the company for the years 1909 and 1910, which was admitted by plaintiff to have been compiled by the secretary, for the purpose of showing the business of the corporation and the proportion of the salary of plaintiff to the volume of business done by the company, and the unreasonableness of the contract. Plaintiff objected to the statement as immaterial, irrelevant and incompetent, which objection was sustained and the defendant excepted. This statement shows that for the first twelve months that the company did business, being the last nine months of 1909 and the first three months of 1910, the total premium receipts of the company amounted to $41,-944.80; that the company during the same 'time received $6,135.73 for-interest and $18,976.07 from miscellaneous sources, the latter amount probably being that turned over by the Royal Fraternal Union. That the agents’ commissions for the same period amounted to $8,200.86, the claims to $14,421.22, the officers’ salaries to $12,333.34, 'and the miscellaneous expenses to $18,891.12. The total disbursements amounted to $53,746.54, and tbe total receipts to $67,056.60.

For the second'year, namely, the last nine months in 1910 and the first three months of 1911, the premium receipts were $69,201.84, the interest $6,327.22, the miscellaneous $624.15, making the total receipts $75,153.21. During the same period the claims amounted to $28,618.-68, the agents’ commissions to $14,881.12, the officers’ salaries to $11,080.12, the miscellaneous expenses to $27,090.-74, or total disbursements of $81,670.66, leaving a deficit.

For the second year the net premium receipts, less agents’ commissions, amounted to $54,320, the claims amounted to $28,618, leaving net receipts of $25,702, against which were miscellaneous expenses of $27,090, leaving toward the payment of officers’ salaries of $11,000 the interest receipts of approximately $6,326.

In rebuttal Mr. Pickrell testified that he mailed a notice of the directors’ meeting, March 22d, to Fred Opp; that he and Mr. Puller in order to avoid future misunderstanding had a mutual understanding in reference to the different positions they would hold, the services they would perform and what was believed to be a reasonable consideration. This was to be submitted to the board of directors for their approval; that witness was anxious to have a position with some assurance as to the future and did not wish to give up his position as general manager of the Royal Fraternal Union until he was sure of his position with the Royal Casualty Company; that he had no doubt in submitting the matter of salaries to the board of business men that they would approve of his request, but he didn’t know that the board of directors would do whatever the wishes of himself and Mr. Puller were. He had reason, however, to believe that their instructions would be approved. Mr. Puller, Mr. Sutton and witness had stock enough to control the company. That Mrs. Largue was Mr. Puller’s wife’s aunt and had ninety shares of stock, and Mr. Chas. B. Puller was a brother and had ten shares.

I have practically taken the view of the evidence as presented by counsel for appellant in his brief.

I. We will first consider the action of the trial court in sustaining the plaintiff’s objection-to the introduction of the statement of the business of the‘com-’ pany for the years 1909 and 1910, made by the gecre£ary^ aB(t offered by defendant.

The objection to the introduction of this evidence' was: “First, because it was not identified by any witness nor testified to as being correct; and, second, because the future success or failure of a corporation just beginning business cannot affect a contract entered into at the beginning of such business.”

We will dispose of these two grounds of objection in the order stated. Attending the first: Counsel has not called our attention to the testimony of any witness showing that said statement was correct, nor have we been able to find in the record any such evidence; and for that reason alone we are of the opinion the court properly sustained the objection and excluded the statement. Moreover, the records of the company showing its receipts and disbursements were not introduced or offered in evidence, and the statement only purported to be a, summary of those records and clearly was inadmissible in evidence in the absence of testimony tending to show it was a correct compilation of the records. This, it seems to me, is elementary.

As regards the second ground of objection mentioned, there is some doubt as to its soundness in the broad unqualified way in which it is stated. The language is: “The future success or failure of a corporation just beginning 'business cannot affect a contract entered into at the beginning of such business. Whether it turns out to be advantageous or disadvantageous to the company is immaterial.’ ’

We are not willing to lend our concurrence to that broad and unqualified contention of counsel. A contract for salaries of officers and agents made with one company might be reasonable, fair and just, while made with another, it might be unreasonable, unjust and oppressive, indicating upon its face fraud and a breach of trust on the part of the officers and agents acting for the company.. For instance, had this company been capitalized for only $5,000, with no business at the time the contract was entered into, no court would or should hesitate to declare as a matter of law that it was unreasonable, 'and fraudulent as to the company and stockholders; but suppose the company had been capitalized for $5,000,000, was a going concern, with a large surplus, at the time this contract was entered into, then I apprehend no court would declare it unreasonable and void as a matter of law, or without the strongest kind of evidence of fraud on the part of the officers acting for the company. But in the case at bar, where the capital of the company is $100,000, with a going-business and a surplus of $25,000, at the time the contract for salaries was made, and where the conceded annual income of the company for the first and second years of its business career was from $65,000 to $75,000, and its disbursements were from $55,000 to $80,000, the contract cannot when considered alone be declared void or voidable as a matter of law; but those facts should be considered with all the other facts and circumstances in evidence in determining whether or not the contract was fraudulent.

For the reasons stated, had counsel for defendant introduced evidence tending to prove that the statement of the business of the company for the years 1909 and 1910 offered in evidence, was correct, then it would have been admissible in evidence. [State v. Findley, 101 Mo. 217.]

And under those facts had the trial court made the same ruling it did, then that ruling would have been erroneous ; but as previously ruled as there was no evidence introduced tending- to show the statement was coi’rect, the court properly excluded it.

II. The chief ground assigned by counsel for defendant for a reversal of the judgment goes to the whole case, and is in legal effect that.the preliminary agreement ma<^e hetwetin plaintiff, Pickrell and Sntton, the three promoters of the company, mentioned j[n the statement of the case, agreeing to elect ^ themselves as three of the directors and officers of the company, and fixing or attempting to fix their respective salaries as president, secretary and general counsel before the organization was perfected, rendered void the contract sued on.

The facts surrounding that question, as I gather them from the record, are briefly these: At the time of and for some time prior .to the organization of the defendant company, there existed in the city of St. Louis a similar company, the Royal Fraternal Union, a going concern, with $16,000 in cash on hand, which-was to be taken over by the defendant compány. Pickrell and the plaintiff were officers in that company, and in view of the organization of the new company and the passage of the old from business, they, with Sutton, agreed by said contract to vote for each other for directors and officers of the new company and to fix their respective salaries for the sums previously stated.

It seems that Mr. Pickrell was the originator of this scheme, and assigned as his reason therefor that, in view of the old company going out of business, with which he and plaintiff were connected, and the contemplated organization of the new company through their and Sutton’s efforts as promotérs, he thought it was but just and proper that they should have an understanding in advance regarding those matters; and testified upon that subject “that he and Mr. Puller [the plaintiff] in order to avoid further misunderstanding had a mutual understanding in reference to the different positions they would hold,. the services they would perform and what was believed to be a reasonable consideration; this was to be submitted to the board of directors for their approval; that he was anxious to have a position with some assurance as to the fiiture«and did not wish to give up his position as general manager of the Royal Fraternal Union until he was sure of his position with the Royal Casualty Company.”

That at the first meeting of the stockholders of the defendant company nine directors, were elected, three of whom were the plaintiff, Pickrell and Sutton, they owning or controlling and voting a majority of the stock of the company; and at the first meeting of the hoard of directors, eight being present, Sutton was duly elected president, Pickrell secretary, and the plaintiff general counsel, of the company, each for one year, and thereafter the board of managers, by means of by-laws or resolutions adopted, prescribed or designated the duties or services which each of those three gentlemen were to perform for the company and authorized the company to enter into contracts with them to perform those duties for a period of four years, at the salaries before stated.

At least, presumably, which has not been contradicted, Sutton, Pickrell and plaintiff were elected directors of the company in pursuance to the preliminary contract before mentioned; also that they did what they could to elect each other to the offices mentioned, and aided in prescribing their respective duties and fixing their respective salaries, save that none of them voted for his own contract of employment. The presumption mentioned is strengthened by the following testimony of Pickrell: ‘ ‘ That he had no doubt in submitting the matter of salaries to a board of business men that they would approve of his request, but he didn’t know that the board of directors would do what the wishes of himself and Mr. Puller were. He had reason, however, to believe that their instructions would be approved.”

Assuming all of those matters to be true, then how stands the case? Can the court, as a matter of law, or find from those facts alone, that the contract of employment of plaintiff for a period of four years as general couns d of the company was fraudulent and void?

Counsel for defendant advance and discuss several elementary legal propositions which cannot and are not disputed by counsel for plaintiff, to the effect that directors of a corporation sustain a fiduciary relation as trustees of the company, as well as agents for the stockholders ; that they should exercise the utmost good faith in making contracts between one-of their number and the company; that if the act of the officer is controlled by a benefit to himself and not to the company, then the same is voidable, subject to review; and in a proper proceeding all damages done to the company by reason thereof, may be recovered of such unfaithful and fraudulent officers or agents.

But counsel for defendant does not stop there, but broadly insists that in all such transactions the burden of proof is on the director who has had dealings with his fellow directors of a corporation to show that the contract or other transaction was fair and reasonable, and cites in support thereof the following authorities: 2 Thomp. on Corp., sec. 1231; Laird v. Michigan Lubricator Co., 153 Mich. 52, 17 L. R. A. (N. S.) 177; Camacho v. Hamilton Bank Note & Eng. Co., 2 App. Div. (N. Y.) 369, 37 N. Y. Supp. 725; 3 Cook, Corp. (7 Ed.), sec. 649; Pollitz v. Wabash Ry. Co., 207 N. Y. 113.]

After a careful reading of these authorities I am of the opinion that they do not support the broad and unqualified proposition contended for by counsel.

They are directed more at contracts and transactions of corporations prohibited by law, ultra vires, and lying without the scope of their authority. In such cases those authorities hold, and properly so, that the “burden is always upon the directors to show that the transaction was fair, in good faith, open and aboveboard;” and some of those eases also hold that it is wholly immaterial whether such transactions are made in good faith or not, they are absolutely void, and all damages sustained by the company on account thereof may, by proper action, be recovered from the directors. I also concur in that view of the law; but that is not this case. Here the directors were clearly acting within the scope of their authority as authorized by the charter and prescribed by the by-laws of the company; nor is there any statute or other law of this State prohibiting the company from making such a contract as the one here in controversy.

The question here is not that the company had no authority to make the contract mentioned, but was it made in good faith and valid, or was it fraudulent and void?

The great weight of authority in this State and elsewhere is to the effect that a contract of this character, made by the company with one of its directors, though the legal action of the board of directors, is binding until nullified upon the ground of fraud. [3 Cook on Corp. (7 Ed.), sec. 649, 2015; Fort Payne Rolling Mill v. Hill, 174 Mass. 224; Bevier Coal Co. v. Watson, 107 Mo. App. 451; Taussig v. St. Louis & Kirkwood Ry. Co., 166 Mo. 28; Funsten v. Funsten Com. Co., 67 Mo. App. 559; 2 Thompson on Corp. (2 Ed.), sec. 1747; Wickersham v. Crittenden, 110 Cal. 332; Clark v. Am. Coal Co., 86 Iowa, 436; Fillebrown v. Hayward, 190 Mass. 472.]

That there is no direct evidence of fraud in this case is practically conceded by counsel for defendant; but he insists that fraud may be inferred from the fact that the plaintiff, Pickrell and Sutton, the three promoters of the company, entered into the preliminary contract before mentioned, agreeing thereby to fix or attempt to fix their salaries.

As previously stated, this contract was open and above board, in writing, and made in view of the dissolution of the old company, with which two of them were officers, and the transfer of its business and assets to the new; this naturally suggested to them the importance of having their relation with the new company settled, as far as practicable before their relations with the old were severed. This was also equally important to the present or new company; it was but fair and just that it should know in advance the terms and conditions of the transfer; the character of the business and assets to be transferred to it, and that it have in advance some just conception of the character and extent of the entangling alliances it was proposed it should enter into with the old company and the promoters of the new.

That contract or agreement was nothing more than a notice to all concerned at to what the three promoters expected to demand from the new company, which of course, had to be passed upon and approved by the board of directors before it could have any binding-force upon the company. [Jones v. Williams, 139 Mo. 1. ]

And no one can read this record and reach any other conclusion than that all parties connected with' the two companies fully understood the positions of these three gentlemen and what their expectations were in the premises.

I have- personally known of a number of similar cases, and have heard and read of many more, and the course taken in this case is the same as was taken in those, save this is the first time I ever heard of the promoters putting this proposal in writing; that fact alone, however, should not militate against them if made in good faith for the purpose before stated, but should be commended.

•Counsel for defendants also insists that fraud should be inferred from the fact that the contract of employment of plaintiff was for a period of four years, while the directors and officers of the company are elected annually, thereby forestalling the action ■ of any future board of directors.

This argument is unsound. In fact, if the law should prevent a corporation from employing persons for more than one year, it would find itself very much handicapped in procuring the best men to serve it; but few such would contract for so brief a period. The ablest and best would seek longer terms of employment, and not be bothered with hunting a new position every year and .running the risk of being thrown out of work at the- end of that time.

But be that as it may, the law is not so written.

This court has held that a corporation may make a contract of employment for a longer period than the term of the office of the directors. [Jones v. Williams, 139 Mo. 1.] In that case the board employed an editor. of a paper for a period of five years, and this court field the contract valid.

Moreover, there are respectable authorities holding that a contract for permanent employment is not illegal. [Revere v. Boston Copper Co., 15 Pick. 351; Hobbs v. Brush Elec. Light Co., 75 Mich. 550; Pennsylvania Co. v. Dolan, 6 Ind. App. 109; Carter White Lead Co. v. Kinlin, 47 Neb. 409.]

We are therefore of the opinion that the circuit court properly found the question of fraud in favor of the plaintiff.

III. Counsel for defendant insists that the judgment is excessive, and for that reason it should be reversed and remanded.

The undisputed evidence shows that some time prior to the discharge of the plaintiff, he, the general counsel, the president and secretary of the company concluded that the business of the samé did not justify the payment to them of the respective salaries they were being paid for their services, and they then and there mutually agreed with one another to relinquish a certain per cent of their respective salaries and give the same to the company, and from that time forward to the day of plaintiff’s discharge from the service of the company, all of them collected their salaries less said reduction.

Notwithstanding those facts, after the plaintiff had been discharged he sued for and recovered not only for his unearned salary for the balance of the four year term, as damages, but also for the amount of said reduction he had previously given to the company.

In my opinion the law is well settled, in principle at least, that where the reduction was made by the three in mutual consideration of the reduction of the others, it cannot be recovered back.

This exact point was presented in the case of Riera v. Salo Art Metal Co., 134 App. Div. (N. Y.) 497, and that court held that a recovery could not be had.

That is the only case directly in point to which my attention has been called; bnt nevertheless, the principle is well settled in that class of cases where several persons in consideration of mntnal agreements sign subscription papers for stock in a corporation to be formed, or donations to churches, expositions, etc., of which the books are full.

In that regard, the judgment is clearly excessive.

IV. It is also insisted that the judgment is excessive for the reason that the record, as stated, shows that: The “plaintiff was discharged March 8, 1911, at which time the alleged contract had two years to run. He brought suit March 16, 1911, eight days thereafter, and claimed the entire salary for the two years ’ unexpired term of the contract at the full rate, together with interest from the date of the filing of the suit, on the theory that although his salary was payable in monthly installments the discharge made the entire amount at'once due and payable. No allowance was made for earnings of plaintiff during the future period and it could not be known what the amount of such earnings would be.”

We will first consider the question as to the salary, and thereafter the interest.

No authority has been cited bearing upon the latter question by counsel for either party.

The general practice formerly was for the discharged employee to sue for each month’s salary as it matured, or await the expiration of the entire remainder of the period for which he was employed, and then sue for the entire sum which would have been due him under the contract had he not been discharged, with the interest on each monthly installment from the time it became due under the terms of the contract; but where, as here, the suit was brought a few days after the discharge for the entire sum which would have been due him for the remainder of the term, two years, had he not been discharged, quite a different rule should prevail. This is true from the very nature of things; for instance, suppose the defendant had admitted that it discharged the plaintiff without canse, as we have held it did, and had said to him, in good faith, notwithstanding that fact, we will continue to pay to you at the end of each and every month $500, for the period of two years, the balance of your unexpired term, as per the terms of the contract of employment; could it with any degree of plausibility, much less reason, he contended that plaintiff was entitled to one cent more? I think not; for the obvious reason that in such a case, in so far as his salary is concerned, the contract has not been broken and the $500 per month for the next two years would be every cent which could possibly become due him under the terms thereof; and if it he true in this class of cases, as all the authorities hold, that the contract is the measure of the damages to be recovered, then I am at a loss, in the absence of some law authorizing punitive damages of which I have no knowledge, to know upon what principle the entire breach of the contract by the defendant could possibly increase his damages over and above the amount fixed by the contract. The fact that plaintiff was discharged from further work before his term of employment had expired could not certainly increase his damages, for the reason that the clause of the contract requiring of the plaintiff service was placed therein for the benefit of the defendant and not the plaintiff, and if the defendant wrongfully prevented the plaintiff from further performance of those services, then the damages flowing therefrom would naturally fall upon it and not upon him; consequently, as previously stated, I am unable to see in what possible way he is damaged in a sum larger than that stated in the contract.

Some confusion has arisen as to the measure of damages in such cases, or perhaps more accurately speaking, to justly administer the damages fixed by the contract, for that is the standard of measurement, although broken by the employer, on account of a desire of the courts to formulate a rule to do speedy justice between the parties and without requiring the discharged employee, as under the old rule, to resort to the courts at the end of each month, or. compel him to await the end of the time of his employment and .then sne for the entire snm due him under the contract; that rule proved to he too vexatious and expensive or too dilatory, resulting in great injustice and hardship in many cases where the employees were unable financially to wait so long.

In order to remedy those evils, the courts, by degrees, evolved the rule permitting the employee to sue upon his unlawful discharge for the amount of wages he would have earned under the contract had he been permitted to fully perform it, and fixed the damages prima facie at the amount provided for in the contract, and cast the burden upon the employer to show by evidence, if he could, that the former was not entitled to recover the full amount; for instance, if the employee had earned any sum of money after his discharge and before the trial, the employer would be entitled to a credit therefor; but if he failed to make such proof, then the employee would be entitled to recover the full amount stated in the contract.

This rule is announced in the following cases: Tenzer v. Gilmore, 114 Mo. App. 210; Ross v. Grand Pants Co., 170 Mo. App. 291; and Boland v. Glendale Quarry Co., 127 Mo. 520.

This rule, at best, is but a makeshift, and in this class of cases, where the suit is brought for the whole amount before the expiration of the term of the employment, it often works great hardship and an injustice upon the employer; for instance, he might be financially able to pay the salary monthly, extending over a period of two years, as provided for by the contract, but wholly unable to pay the entire amount two years in advance of the time provided for therein. Again, the employee might die after the rendition of judgment and before the expiration of his term, or he might procure other employment; in the former case had the suit been brought at the end of the month or of the term, the employer would only have been liable for the wages up to the date of the employee’s death; and in the latter, he would have been entitled to a credit for the amount the employee earned during the remainder of the term.

But regardless of the origin of this rule, its purpose or wisdom, it is now too firmly embedded in our jurisprudence to justify its eradication; however, it should be limited to its present scope, and not extended as an instrument of greater injustice or to more grievous oppression of the employer. In its enforcement, equity and justice should be done the employer as well as the employee.

If we apply this rule to the facts of this case in the light of the foregoing observations, then we are clearly of the opinion that the plaintiff was not entitled to interest' on the whole amount sued for from the institution. of the suit, but only on the monthly installments as they became due under the contract, whether before or after the institution of the suit.

Section 7181, Revised Statutes 1909, prescribing the rates of interest judgments shall bear has no application to interest on installments not bearing interest, and therefore not existing and not due at the date of their rendition. Such installments should bear six per cent interest from and after maturity, whether they mature before or after judgment, and the judgment should so provide.

We are, therefore, of the opinion that the judgment of the circuit court to the extent of allowing interest on all sums not due, whether before or after the rendition of judgment, is excessive and erroneous.

Y. The further point is made, that since the damages for which the judgment was rendered was composed of monthly installments due and not due at rendition, the trial court er-refl in not finding the then “present worth” of those sums not due, according to the life tables, and in not rendering judgment for only the aggregate of the installments then due with interest thereon, and the . then “present worth” of those installments not then due. In other words, I understand counsel to contend that the trial court should have deducted from each monthly installment not due at the date of the judgment, a percentage equal to six per cent per annum, from that date until due, according to the contract, and then have rendered judgment for an amount equal to the installments then due with interest plus those not then due, less said six per cent deduction. •

That contention of counsel, in my opinion, is well founded; it is based upon sound reason and common justice. While it deducts six per cent per annum from the monthly installments not due him at date of the rendition of judgment, yet it gives him those portions of his salary before due, from one month to many before he could have collected them had the contract not been broken, and had he worked all that time.

For the reasons stated, the judgment is reversed, the cause remanded with instructions to the circuit court to make the deductions mentioned, due consideration to be given to the time which has since elapsed, and to render judgment for the plaintiff for the balance found by the court to he due him.

Graves, J., concurs in separate opinion in. which Blair, J., concurs; Bond, P. J., concurs in paragraph 3 and result.

GRAVES, J.

(concurring.) — I concur in all that is said in this opinion upon the question of non-liability of defendant upon the first count of the petition, and upon the general question of thé liability of the defendant upon the second count.

I agree also to the proposition that the contract price is the prima-facie damages for the breach of the contract, and that under our rule it devolves upon the defendant to overcome these prima-facie damages by proof contra. In this case there is no proof contra, and the question is what are the prima-facie damages under the contract. Had the suit been brought after the expiration of the contract the right measure of damages (there being no proof contra) would have been the aggregate monthly installments of the salary, plus legal interest on each of such installments from the time they became due, up to the entry of judgment. On the other hand, where suit was (as here) brought immediately upon the breach of the contract, it occurs to me that the prima-facie damages should he (1) the aggregate amount of the installments due or past due at the date of judgment, together with legal interest on all past due installments from the time they became due to the entry of judgment, (2) as to installments not due at date of judgment, but to become due in the future, the present worth of each of such undue installments should be found, and the aggregate of these sums be added to the aggregate of the due and past due installments first above mentioned. These are mere matters of arithmetical calculations, and I think the case should be remanded with directions to the circuit court to recast its judgment in accordance with this rule, taking the entry of the new judgment as the date from which to compute interest, or find the present worth of installments. It may be the principal opinion covers this rule, but I am not certain, and hence this separate concurrence.

Blair, Jconcurs in these views.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    WINNIFRED R. SALMONS v. St. JOSEPH & GRAND ISLAND RAILROAD COMPANY, Appellant.
    Division One,
    July 2, 1917.
    1. WITHDRAWAL OF EVIDENCE: Error Not Raised by Motion for New Trial. Any error in permitting respondent to withdraw his answer to a question after defendant had objected to the same is not raised by an assignment in the motion for a new trial that the court admitted incompetent testimony offered by plaintiff. A complaint of the admission of evidence cannot be said to raise a question as to the effect of evidence actually excluded.
    2. ERRONEOUS EVIDENCE: Plaintiff’s Family: Prompt Withdrawal. A prompt withdrawal of evidence erroneously admitted and an oral direction by the court to the jury not to consider it, cures any error in getting it before the jury unless exceptional circumstances attend its admission. And where plaintiff, suing for personal injuries, was asked what family he had, to which question objection was made, and the court remarked that the statute was both penal and compensatory, and plaintiff answered that he had a wife and one child, whereupon defendant made a full and specific objection, and plaintiff’s counsel asked to withdraw the answer, and the court stated to the jury that the answer was withdrawn and directed them not to consider the testimony and the written instructions given on the measure of damages specifically confined the elements of damage to the injuries to plaintiffs person and further told the jury they must obey the instructions as the law of the case, there was no error in permitting the withdrawn' erroneous testimony to come before the jury, for there were no exceptional circumstances taking it out of the rule that, ordinarily, the withdrawal of erroneously admitted evidence leaves no ground for reversal on account of its admission.
    3. NEGLIGENCE: Sudden Stop of Train: Uncoupling Air-Hose: Presumption Upon Presumption. A train was backing in upon a sidetrack preparatory to being cut in two. A brakeman was ordered to get upon the caboose in order that he might observe and signal the train’s approach to cars already on the track. As the train backed in on the siding he gave an “easy” signal, and the speed was reduced to five or six miles an hour. In a few moments the conductor, who was on the ground near the middle of the train, signaled for a stop, and his order was obeyed so suddenly that the brakeman was thrown violently from the center of the top of the caboose over its rear end and fell upon the track. His petition charged that the stop was made “carelessly, negligently and suddenly, with unnecessary violence and in disregard of- the usual custom and practice.” The engineer testified he applied the air-brakes and the conductor that he uncoupled the air-hose. Held,. (1) that there was evidence that an employee of defendant was in a position to uncouple the air-hose, and testimony by plaintiff that ■ uncoupling the air-hose sets all the brakes back of that point and “stops the train right there” did not amount to basing one presumption upon another, and (2) the allegations were sufficiently broad to let in the evidence.
    4. -: Instruction: Facts Not Shown in Evidence. An instruction on the measure of damages telling the jury that “you should take into consideration, in connection with all the circumstances and facts in the evidence, the bodily pain,” etc., does not permit the jury to consider facts not shown in evidence.
    5 -: -: Authority to Find Amount Sued for. An instruction telling the jury to reasonably compensate plaintiff for the injuries received, “not to exceed $25,000,” which was the amount asked for by the petition, is not, because it contains the' words “not to exceed $25,000,” reversible error.
    6. -: -: Common Error, An instruction, in every material respect in which it is not similar to an instruction asked by defendant is supplemented and aided by such instruction, is not misleading, and need not be reviewed.

      7. -: Excessive Verdict: $10,000. A brakeman was thrown from the center of the top of a caboose over its rear end by a sudden stop of the train. For two months he was treated at home by the railroad’s physician, then was sent to a hospital for twelve days, and then was ander the same treatment at home again for a week. Since then he has walked on crutches. The injury is to the knee. There was testimony that there is a bony growth in the joint which prevents the knee from being straightened, that he cannot flex his knee and never will be able to do so, that an operation would give no relief, and that he will never be free from pain. Held, that a judgment for $10,000 is not excessive.
    Appeal from Buchanan Circuit Court. — Eon. Thomas B. Allen, Judge. •
    Affirmed.

      Robert A. Brown and Richard L. Douglas for appellant.
    (1) The verdict of the jury is grossly excessive under all the decisions of this court, and is larger by one-fourth than any verdict ever approved by this court for the entire loss of a leg. Kinney v. Met. St. Ry. Co., 261 Mo. 97; Farrar v. Met. St. Ry. Co., 249 Mo. 210; Lessenden v. Railroad, 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Ostertag v. Railroad, 261 Mo. 457; Applegate v. Railroad, 252 Mo. 173. The verdict is so grossly excessive under all the evidence in the case that it cannot be reconciled with honest motives, and can only be accounted for on the ground of prejudice and passion or misconduct on the part of the jury. Under such circumstances the remittitur of $2,500 under compulsion of the trial court does not even palliate the error, and the vice can only be cured by a new trial. Longan v. Weltmer, 180 Mo. 322; Chlanda v. Transit Co'., 213 Mo. 244; Partello v. Railroad, 217 Mo. 645; Gibney v. Transit Co., 204 Mo. 704; McGraw v. O’Neill, 123 Mo. App. 691. . (2) The verdict is contrary to the great weight of the evidence in the case on the issue of negligence, and this fact, in connection with the outrageously excessive verdict following the prejudicial errors in admission of evidence and in instructing the jury, renders a new trial imperative. Kinney v. Met. St. Ry., 261 Mo. 116. (3) Respondent was permitted to testify, over the objections and exceptions of the appellant, that he was married, and had a wife and one child. The admission of such evidence has always been held to be reversible error, since it inevitably tends to inflame the sympathies of the jury and tends to swell the verdict-beyond the lawful bounds of compensation for the injuries sustained by the plaintiff. Williams v. Railroad, 123 Mo. 573; Dayharsh v. Railroad, 103 Mo. 570; Mahaney v. Railroad, 108 Mo. 191; Stephens v. Railroad, 96 Mo. 207 ; Torreyson v. United Rys., 144 Mo. App. 626; Railroad Co. v. Musgrove, 89 S. E. (Ga.) 767; Lacorazza v. Cantalupo, 210 Fed. 875, 127 C. C. A. 459; Railroad v. Mc-Mican, 194 Fed. 393, 114 C. C. A. 311; Railroad v. Roy, 102 U. S. 451. The poisonous effect of this prejudicial and improper evidence cannot be, and in this, case obviously was not, counteracted by the instruction to the jury that the evidence was withdrawn and should not be considered. Such error can only be cured by a new trial. Stauffer v. Railroad, 243 Mo. 305; Wojtylak v. Coal Co., 188 Mo. 260; Neff v. Cameron, 213 Mo. 350; Trent v. Printing Co., 141 Mo. App. 437; Self v. White, 169 Mo. App. 709; Glenn v. St. Ry. Co., 167 Mo. App. 109. (4) The court erred in permitting respondent to testify, over the objections and exceptions of the appellant, that it would have been possible to cause the violent stopping of the train, to which he testified, by cutting or disconnecting the air-hose at some point in the train while it was in motion. The only possible evidence of negligence in the case is that presumptively supplied by the fact of the stopping of the train in the manner claimed by respondent, and there is not a scintilla of evidence that any member of the train crew was in a position where it would have been possible to cut or disconnect the air hose in this case, and the introduction of this evidence is a mere attempt to base a presumption on another presumption or speculation not even founded on the evidence. This is erroneous. Fink v. Railroad, 161 Mo. App. 326; Trigg v. Land Co., 187 Mo. 227; Beebe v. Transit Co., 206 Mo. 442; Kane v. Railroad, 251 Mo. 30. (5) Respondent’s intruction numbered two given by tbe court over tbe objections and exceptions of the appellant is erroneous in two respects, (a) The instruction authorizes and directs the jury to consider matters not shown in evidence in arriving at their verdict, and the magnitude of the verdict which they returned indicates that they obeyed the instruction in this repsect. For this error the cause should be reversed. Keeline v. Sealy, 257 Mo. 498; Crow v. Railroad, 212 Mo. 589; Scheurer v. Rubber Co., 227 Mo. 347; Degonia v. Railroad, 224 Mo. 564; Wellmeyer v. Transit Co., 198 Mo. 527. (b) The instruction is erroneous for the reason that it contains a “judicial hint” that a verdict for $25,-000 would have the approval of the court. It is well settled that it is not proper in instructing the jury to intimate that they may find a verdict in a sum many times the amount justified by the evidence.. Kinney v. St. Ry., 261 Mo. 115; Ostertag v. Railroad, 261 Mo. 457, 479; Lessenden v. Railroad, 238 Mo. 247; Applegate v. Railroad, 252 Mo. 173. (6) Respondent’s instruction numbered six on the credibility of the witnesses is erroneous in that it authorized the jury to discount the effect of the testimony of the witnesses on account of matters not shown in evidence. .Keeline v. Sealy, 257 Mo. 498.

      Culver & Phillip for respondents.
    (1) The verdict of the jury was not so grossly excessive as to show passion and prejudice. The evidence clearly establishes the fact to be that this plaintiff must go through life with a useless leg and that he will suffer constantly more or less pain. Kinney -v. Metropolitan St. Ry. Co., 261 Mo. 97. (2) The verdict is not contrary to the great weight of the evidence as appellant contends. The rule is that this court will not determine the weight of the eviden.ce where it is conflicting and the trial court has approved the verdict. Nephler v. Woodward, 200 Mo. 185; McNulty v. Railroad, 203 Mo. 479. (3) The court did not err in admitting testimony as to the manner in which the train could have been stopped, including what effect the disconnecting or uncoupling of the air hose would have on the stopping of the train. It was shown by the undisputed evidence that the only way the train could be stopped suddenly and violently was by uncoupling the air or lay the act of the engineer in making a sudden or emergency application of the air to the brakes. That it was the application of the air that stopped the train is shown absolutely by the testimony of defendant’s conductor. Furthermore, the petition alleges merely that defendant’s agents and servants suddenly stopped the train with great violence. It does not allege specifically how it was done. This is sufficient and it was unnecessary to plead the evidence. Appellant says that the instruction should have told the jury to determine the injuries “as shown by the evidence” and not “in connection with all the circumstances and facts in evidence There is no difference between what is “shown by the evidence,” and “the circumstances and facts in evidence.” But even if the instruction for damages was likely to be misunderstood, it was the duty of appellant to ask a modification or explanation in an instruction of its own. Fisher v.. Transit Co., 198 Mo. 591; Taylor v. Iron Co., 133 Mo. 349; Geisman v. Electric Co., 173 Mo. 654. (4) It is the law that the stopping of a train with extraordinary violence is negligence. Farmer v. Railroad, 178 Mo. App. 579; Allison v. Railroad, 157 Mo. App. 72; Hedrick v. Railroad, 195 Mo. 104.
   BLAIR, J.

Respondent is a railroad brakeman and was injured by being thrown from a car upon which he was riding in the course of duty. The jury returned a verdict for $12,500. The trial court required a remittitur of $2500 and rendered judgment for $10,000. The railroad company appealed.

The train upon which respondent was working was engaged in interstate commerce. It had reached Stouts, Kansas, and was backing in upon a sidetrack preparatory to cutting the train in two for the purpose of doubling a hill or grade east of Stouts. Respondent was ordered to get upon the caboose in order that he might observe and signal the train’s approach to cars already upon the siding. The operation occurred about 5:15 on a December morning. Respondent attached a fusee to the rear of the caboose and assumed his position on top of the car. As the train backed into the siding he gave a slow or “easy” signal, and the speed was reduced to five or six miles per hour. In a few moments the conductor, who stood upon the ground near the middle of the train, signaled for a stop. This order, .the evidence tends to show, was obeyed in such a sudden manner that respondent was thrown violently from the center of the top of the caboose over its rear end and fell upon the track, sustaining the injuries for which he sues. Other facts necessary to a decision are stated in the course of the opinion.

I. Respondent was- asked what family he had. Counsel for appellant said: “That is objected to as incompetent.” The court, responding to the suggestion that the statute was both penal and compensatoryj overruled the objection. Respondent said he had a wife and one child. Other questions concerning other matters were put and answered. Appellant’s counsel then offered a second objection, full and specific, to the question concerning respondent’s family.. Upon hearing this objection respondent’s counsel asked to withdraw the answer as to respondent’s family. To this appellant objected. Counsel for respondent stated: “Well, we didn’t hear his objection at first; and when we heard his objection, we want to withdraw it.” The court then stated to the jury that the answer was withdrawn and, at the time, specifically directed the jury not to consider that testimony. Appellant excepted. In respondent’s instruction on the measure of damages the elements of damage are specifically stated and none concerns anything except the injuries to respondent’s person. In an instruction given at appellant’s instance the jury are told that the instructions given “declare the law to govern your action in this case. They are not to be disregarded by you at your pleasure, but they must be considered and obeyed by you in arriving at yonr verdict, and while yonr verdict must he found in accordance with such instructions and the evidence in this case, you are,” etc.

It is contended the judgment must he reversed because the court permitted the question mentioned above to be answered, despite the subsequent withdrawal of the answer and the giving of the instructions quoted.

(a) The motion for new trial contains no complaint of the action of the court. The only grounds of the motion relating to rulings on evidence are that (1) the court admitted irrelevant, incompetent and immaterial testimony offered by respondent, and (2) rejected competent, relevant and material testimony offered by appellant. In this case the evi<jence complained of was actually withdrawn almost as soon as given, three questions and answers intervening. The point that the error in permitting the answer, in the first place, was incurable error, despite the withdrawal of the answer, is not fairly covered by the complaint in the motion that the court admitted incompetent testimony. It is only in exceptional eases that withdrawal of testimony does not meet objections to its admission (Stauffer v. Railroad, 243 Mo. l. c. 321; Pennsylvania Co. v. Roy, 102 U. S. l. c. 459), and a complaint of the admission of evidence cannot be said to raise a question as to the effect of evidence actually excluded. The motion for new trial did not count upon the error now pressed upon our attention.

(b) It may be conceded evidence as to respondent’s family was not admissible. In this case, however, the evidence was expressly withdrawn, and then the court immediately directed the jury not to consider it. In an instruction given the elements of damages were specifically enumerated, and in another the jury were told they must obey the instructions of the court as the law of the case. There was no evidence of unfair intent in the asking of the question, no persistence in asking it and no comment upon the answer except the oral direction that the jury must not consider it. The instructions on the merits and burden of proof also specifically limited the jury to the evidence in the case, thereby impliedly excluding any consideration of the withdrawn answer to the question objected to. In Stephens v. Railroad, 96 Mo. l. c. 215, considering the admission of evidence as to plaintiff’s family, this court expressly said: “We have no doubt but the trial court may exclude improper evidence during the progress of the trial, or by an instruction at the close of the evidence, and when this is done, the fact that such evidence was heard by the jury will not operate as a reversal of the judgment. ” The evidence was admitted in that case, though the court directed the jury not to consider it in making up their verdict. It was said in the opinion: “We do not say that this judgment should be reversed alone on the ground of excessive damages; nor do' we say that it should be reversed because of the evidence before noted, had a specific instruction as to the measure of damages been given; but in view of the very general instruction as to damages, and the amount of the verdict, we cannot escape the conclusion that the incompetent evidence had its effect.” In Wojtylak v. Coal Co., 188 Mo. l. c. 287, the court, considering a like question, held that the withdrawal of evidence inadvertently admitted “will ordinarily have the effect of curing the error. ’ ’ It. then pointed out the happenings in the trial in connection with the evidence in question, and added: “While it may not of itself have been reversible error, the manner of getting it before the jury was unfair practice.” In Stauffer v. Railroad, supra, it was held the withdrawal of evidence, improperly admitted cures the error ordinarily and that this is a good working rule unless exceptional circumstances are present, such as to call “for a reversal as the only cure.” In Pennsylvania Co. v. Roy, supra, the United States Supreme Court held that evidence erroneously admitted could be eliminated effectively by a direction in the judge’s charge that it must not be considered by the jury. The court, through Mr. Justice Harlan, concluded thus: “The presumption should not be indulged that the jury were too ignorant to comprehend, or were too unmindful of their duty to respect, instructions as to matters peculiarly within the province of the court to determine. It should rather be, so far as this court is concerned, that the jury were influenced in their verdict only by legal evidence. Any other rule would make it necessary in every trial, where an error in the admission of proof is committed, of which error the court becomes aware before the final submission of the case to the jury, to suspend the trial, discharge the jury and commence anew. A rule of practice leading to such results cannot meet with approval.”

From these decisions and others and on principle it must be concluded that this record does not bring the case within the rule upon which appellant relies. There are no exceptional circumstances taking it out of the rule that, ordinarily, the withdrawal of erroneously admitted evidence leaves no ground for reversing the judgment on account of such admission.

(c) The question whether the objection first made to the question was legally sufficient to present a question to the trial court need not be considered. The fact of the debatablenéss of that question goes, in all events, somewhat to explain the original ruling and the failure to withdraw the answer until the amplified objection was made.

II. It is contended it was error to permit respondent to testify that uncoupling the air-hose would apply the brakes. It is urged that there was no evidence that any employee was in a position to uncouple the air-hose and the evidence amounted to basing one presumption upon another.

No objection was made to the question until after the answer was in. The question was direct and the answer responsive. Respondent testified the uncoupling would set the brakes. Then he was asked: ‘ ‘How quickly?” Appellant then objected to testimony on the point because there was no allegation that anything of that kind was done at the time. This was overruled. Then respondent answered the question. “How quickly?” And in doing so said that nnconpling the air-hose' sets all the brakes back of that point and “stops the train right there.” No objection was made to this. Under the rule (1) the objection was too late, and (2) the objection now made was not made at the trial. Again, the objection is not sound. The petition merely charged, generally, that the stop was made “carelessly, negligently and suddenly, with unnecessary violence and in disregard of the usual custom and practice,” and without warning to respondent. Eespondent’s effort was to show that there were but two ways in which the stop could have been made — setting the air-brakes (1) from the engine, or (2) by disconnecting the air-hose. There was evidence the train was uncoupled and moving out of the siding almost as soon as respondent fell. The disconnection of the air-hose was necessary to the uncoupling of the train. The train was equipped throughout with air-brakes, and the evidence is that the air-brakes were working well, and it was shown there was nothing about the grade or length of the train or speed, etc., to prevent an ordinary stop being made. It was perfectly competent for respondent to prove, if he could, that the only things which could account for the violence of the stop were such as to render appellant accountable. The engineer testified he applied the air-brakes, and the conductor testified he “made the cut,” i. e. uncoupled the cars, including the uncoupling of the air-hose. There is no basing of presumption upon presumption, and the allegations of the petition were amply, broad to let in the evidence.

III. Complaint is made of the following instruction:

“If you find for the plaintiff, in estimating the amount of his damages, you should take into consideration, in connection with all the circumstances and facts in the evidence, the bodily pain and suffer-an<^ mental anguish, if any, endured by him, resulting from the injuries received; the character and extent of his injuries, and whether they are permanent in their nature; the extent, if any, to which he has been prevented and disabled by reason of said injuries from working and earning a livelihood; and if, from the evidence, you believe and find that his injuries are reasonably certain to cause him pain and anguish- in the future, and reasonably certain to impair or lessen his ability to work or labor in the future, you should take said facts into consideration also. And if you find for the plaintiff you should find for him in such sum as in your judgment, under all the evidence in the case, will reasonably compensate him for the injuries received, not to exceed the sum of $25,000.”

(a) It is urged this instruction permitted the jury to consider facts not shown in evidence. This argument is based upon the clause “you should take into consideration, in connection with all the circumstances and facts in the evidence, the bodily pain,” etc. The contention is that this falls within what was said in Keeline v. Sealy, 257 Mo. l. c. 527. An examination of that case shows that the portion of the opinion relied upon received the sanction of only two of the then judges of this Division. Further, it was not said the instruction was reversibly erroneous because of the feature thought to be analogous to one in the instruction in the instant case. Again, this instruction closes with a direction to the jury to find for the sum they believe to be just “from all the evidence in the case.” Also, other instructions specifically informed the jury the burden was on plaintiff to “prove his case by the greater weight of the credible evidence. ” The point is ruled against appellant.

(b) It is insisted it was error to include the phrase “not to exceed the sum of $25,000.” Cases are cited. In this case the court specifically instructed the jury that' ‘ ‘ the mere fact that plaintiff seeks to recover the sum of $25,000 is no evidence whatever of the amount he is entitled to recover, if anything, nor is it any evidence that he is entitled to recover any sum whatsoever.” In addition, it has been consistently held such a clause in an instruction, following the petition, is not reversible error, whatever its effect upon the question of excessiveness of damages. [Kinney v. Met. St. Ry. Co., 261 Mo. l. c. 114, et seq.]

(c) The criticisms of instruction 6 for respondent need not he examined. In every material respect in which it is not similar to an instruction asked by appellant it is supplemented and aided by such instruction in such manner that the jury could not have been misled to appellant’s prejudice.

IY. It is insisted the verdict is against the great weight of the evidence and that this, in connection with the asserted excessiveness of the verdict and errors in the trial, requires a new trial. The allegations of error mentioned have already been dealt with, and we have found no prejudice to appellant’s rights of which it can now complain. Neither does recor(j show the verdict to be against the weight of the evidence. There is no dispute that respondent, in the course of duty, was upon the car and that he fell or was thrown therefrom and was injured. The evidence tends to show he was standing, at his post, near the middle of the top of the caboose and that the moving train came so suddenly to a stop as to throw him half the length of the car and off the rear end of it. This is his own testimony. Persons in the car at the time testified in the ease. One boy was thrown from a seat upon which he was sleeping. One man testified he had ridden on freight trains a great deal and he never saw such a stop and'shock except once in a wreck. The witnesses characterized the stop as an awful jolt, a hard crash, etc. One occupant of the car saved himself from being thrown from the car by holding to the seat “with both hands.” It is said one of these witnesses should be discredited, because he testified he was thrown to the east when the car, moving westward, stopped suddenly. His testimony gave no suggestion of intentional falsity. He evidently erred in the testimony mentioned. It is quite unreasonable to think he would concoct a story and include such an error. He was clearly a man of intelligence. The natural conclusion from his testimony is that he was lying upon the seat, running along-the side of the caboose, probably trying to sleep, and that he got directions confused after the sudden shock which drove his head against the partition or end of the car. No witness for appellant was in the ear. The engineer and fireman and head brakeman, all at or near the front of the long train, testified there was no shock that they felt. The conductor declared he did not know, being away from the train. In view of all this testimony it is difficult to understand why it is thought the weight of the evidence is with appellant. The point is not of great consequence in view of our conclusions upon other matters with relation to which it is pressed, but it is so insisted upon that we have set out the substance of the vital evidence.

, Y. The.judgment for $10,000 is said to be ‘ ‘grossly excessive.” Respondent was injured December 29,1913. From that time until February 21, 1914, he was treated at home by one of appellant’s surgeons. A few days thereafter he was sent to a hospital and stayed there twelve days, and then was at home under the same treatment for a week, until about March 18, 1914. Since this time respondent has walked upon crutches. The injury is to the knee. It has caused respondent much suffering and continues to do so. The testimony of several surgeons is that there is a bony growth in the joint which prevents the leg being straightened. Dr. T. E. Potter, a practitioner of forty years’ experience, testified respondent couldn’t flex his knee; “it comes out about half way, or a little more, and that is as far as it will go; and even by force, you can’t press it out; ” that it was not very painful, but that there was enough pain to prevent success in efforts to flex the knee; that he thought the injury permanent and didn’t believe he could give respondent any relief by an operation; that the case was such that he would not operate; that an operation resulting in a perfectly stiff leg might be performed, but he didn’t know that would be any improvement; that the limb is “better than no limb at all” and that it will be a serviceable leg except for the crook in it.

Dr. Kenney thought the leg would not get any straighter, but the “trend” would be for respondent to grow accustomed to it and “as years go past it would get a little better;” that he “wouldn’t say he would get entirely free from pain” and that respondent would not have a “good, serviceable leg.”

Dr. Byrne thought respondent might be relieved by an operation; didn’t know what the result of such an operation would be; no such operation had been performed in St. Joseph, but that it had been performed by Dr. Murphy of Chicago; that the knee is painful and will continue so as long as there is any motion in it.

Dr. Campbell testified the knee was “anchylosed, almost,” very little movement in it; that it was a permanent injury and that, as for an operation, “most cures in that kind of case are imáginary;” that the result of an operation would probably be a “rigid knee joint.”

Two of appellant’s surgeons testified the knee would get well if respondent would go to bed and submit to have “extensions,” i. e., weights upon it; that the foreign substances in the joint would be absorbed. There is, therefore, substantial evidence respondent’s leg is held in a bent or crooked position by a foreign bony substance in the joint resulting from his injury; that this is permanent and that an.operation will do him no good; that he has suffered much pain and will continue to suffer. The exact position of the leg is not made entirely clear. It was clear to the jury and the trial court. If it is bent as Dr. Potter’s testimony indicates, and there is no reason to doubt his accuracy, the leg is of no value so far as walking is concerned. In other words, there is substantial evidence that respondent, so far as-the question of damages is concerned, has, for all practical purposes, lost the use of his leg from the knee down. In these circumstances a judgment for $10,000 cannot be said to be excessive, particularly in view of the failure of the record to put clearly before us what was so clearly before the jury and trial court. The judgment is affirmed.

All concur, except Bond, P. J., not sitting.


author: BOND, J.

text:
    CITY OF HARDIN v. LAFAYETTE FERGUSON et al., Appellants.
    Division One,
    July 2, 1917.
    1. DEDICATION":. To Unincorporated Town. A dedication of land to a public use by recording a plat showing such dedication to an unincorporated town is legally effective, although at the time there is no corporate entity or artificial grantee in whom the title is vested.
    2. -: Elements: How Shown. It is of the essence of a dedication that it should appropriate the land for public use and that such should be the intent of the owner and that it should be accepted by the public. It may be effected without any writing, and all its elements may be shown by positive or circumstantial evidence of acts in pais.

    S. -: Acceptance: Revocation. The due filing and recording of a plat designating the streets, alleys and subdivisions of a town, embracing but not subdividing a small strip lying between the designated lots and a railroad, the incorporation of the town as a "village immediately thereafter, and the making use of the strip by the town by the erection of a jail and public hitch racks and by the planting of trees thereon and by its continued use for those and other public purposes, showing an acceptance by the town of the trust on behalf of the public, constituted a complete dedication of the strip to public use, and being complete was irrevocable.

      4. -: Estoppel: Inclusion in Subsequent Dedication. If the recorded plat and the acceptance by the city constituted a complete dedication, the city did not lose its title because a portion of the dedicated strip was included in an addition subsequently laid out by one of the signers of the original dedication.
    Appeal from Ray Circuit Court. — Hon. F. P. Divelbiss, Judge. •
    Affirmed.

      George W. Crawley and J. L. Farris, Jr& Sons for appellants.
    (1) The city, not having been organized at the time the plat was filed, and there being nothing indicative on the plat of the purpose for which it was left, it was error for the court to treat such land as having been dedicated. The persons reserving the land conic] do with that as they saw fit. (2) The city did not acquire the strip of ground south of its roadway running east and west in front of blocks 12 .and 13, and north of the railroad right of way, by adverse possession. It has never been fenced, except a portion of that south of block 13, which was fenced by others, nor has it ever had the open, notorious, adverse and peaceable possession of any parts of this strip of ground as against the world, excepting the two streets crossing the railroad and the one street sixty feet in width south of said block where the city has kept its public road, and worked the same. The evidence shows that other parties have, at times, and continuously been in possession of parts of all this strip before the organization of the city and after the filing of the plat, as well as ever since. Therefore, the court'was in error in sustaining the claim of the city. (3) Ferguson acquired a portion of his lands through the deed of McGinnis, and the court should have ascertained and determined the same. (4) The deed from the heirs of James Hughes to Cunningham conveys title to what interest James Hughes may have had, and the court erred in holding said deed void and of no effect. The court further erred, and we make the point that by the presentation of the plat signed and acknowledged by James Hughes, to the city council, and its approval, and by the recording of said plat in the office of the recorder of deeds, 1888, and permitting it to rest for all this time, in holding that said city was not estopped and precluded to assert claim against the very lands included in the plat. There was nothing on this plat-to show the purpose of Hughes to dedicate it to the city for any purpose, but to the contrary it shows upon its face the purpose to set aside each lot as his individual property. Because of this the city is estopped now to set up claim.

      Garner, Ciarle é Garner for respondent.
    (1) The plat of the original town,. coupled with the acts of user, control and supervision on the part of the respondent city, shows an intention on the part of the owners to dedicate and of the city to accept, for public uses, the land in controversy. California v. Howard, 78 Mo. 88; Buschmann v. St. Louis, 121 Mo. 523; Heitz V; St. Louis, 110 Mo. 618; McGrath v. Nevada, 188 Mo. 102; Naylor v. Harrisonville, 207 Mo. 341; -Rose v. St. Charles, 49 Mo. 509; Connor v. Nevada, 188 Mo. 148; Price v. Breckenridge, 92 Mo. 378; Kimball v. Chicago, 253 111. 105; Arnold v. "Weiker, 55-Kan. 110; Oregon City v. Oregon C. & R. Co., 44 Ore. 165; Kimball v. Chicago, 97 N. E. (111.) 257. (2) It is immaterial whether or not the town was incorporated at the date the plat was filed. School District v. Pointer, 102 Mo. 464. (3) Action of the board of aldermen can only be shown by the minutes and the action of the aldermen individually or in a private capacity cannot bind the city. Stewart v. Clinton, 79 Mo. 603; Viernow v. Carthage, 139 Mo. App. 276. (4) It was not necessary for respondent to show a perfect-title against the world, but only a better title than appellants. Charles v. White, 214 Mo. 187; Dixon v. Hunter, 204 Mo. 382; Gage v. Cantwell, 191 Mo. 698; Graton v. Land Co., 189 Mo. 322; Harrison Co. v. Bowers, 200 Mo. 219; Toler v. Edwards, 249 Mo. 152. (5) The city is not estopped as against appellant by any negotiations he may have had with members, of the board of aldermen acting in a private capacity, which is the only estoppel pleaded. See cases cited under point three; also Moses v. Dock Co., 84 Mo. 242; Webb v. Demopolis, 95 Ala. 13; Grooms v. Morrison, 249 Mo. 544; Dilbert v. D’Arcy, 248 Mo. 617.
   BOND, J.

I. Plaintiff, the city of Hardin, sets up title to a certain strip of land about one hundred and fifty feet wide, lying between the Wabash Railroad tracks and lots 8, 9, 10, 11, 12 and 13 of the original town of Hardin.

Yarions persons were joined as parties defendant, but on disclaiming any interést the suit was dismissed as to all but Lafayette Ferguson and J. W. Cunningham, who claim title and possession to that part of the strip lying south of lots 12 and 13.

The evidence shows that the title emanated through original grant from the United States and that all deeds introduced, both by the city and by the two defendants, run from a common source of title; that in 1869 the strip of land in controversy was dedicated 'to the town of Hardin by the then owners, Messrs. Shaw, Hughes, Spurlock, McGrinnis and Porter; that in 1888 James Hughes (one of the signers of the dedication) platted and recorded an addition to the town of Hardin, block one of which appears to include the portion of the disputed strip lying south of Block 13 of the original town; that until the year 1912 there was no apparent dispute as to the ownership by the city of this entire strip of land; that for thirty years it had been used for public purposes; that the city had erected thereon the town jail; also public hitch racks; that trees had been- planted on the western end and the open space had been used as a sort of city park, while from time to time various “shows” or circuses had been allowed to erect their tents there; that in the early years there was also a town well there, but that this had fallen into disuse.

There was also testimony to show that the city had run tiling through the greater length of the strip in order to drain it and make it usable; also that a street sixty feet wide had been run the entire length of the strip and at several points streets had been cut through which ran south over and across the tracks of the Wabash Railroad Company; that in the year 1912 the defendant Cunningham, in looking for land near the railroad tracks to be used for unloading purposes, approached the then mayor, Mr. Brunnsworth, to ascertain if he could use the portion now in dispute (i. e. that lying south of lots 12 and 13) and was told the matter would be taken up and. investigated. Later the mayor reported that the city held no title to this land and Cunningham- then procured quitclaim deeds from the heirs of James Hughes and also Thomas McGinnis (both signers of the dedication).'

The evidence also tends to show that he only paid a small price for the land; that later Cunningham leased a part of the land he had thus procured to John Shelton, who erected a barn thereon, which afterwards burned and never was rebuilt.

In 1914 the city instituted this suit to quiet its title to the entire strip. A jury being waived the court rendered judgment in favor of plaintiff and defendants appealed.

II. The questions presented by this appeal are whether the respondent city acquired the property in controversy by a valid dedication, either common law or statutory, and, if so, whether it is estopped to assert such title against defendant Cunningham by reason of the recording of the plat of Hughes’s Addition in 1888. Taking these in order; the original plat of the dedication recorded in 1869 and prior to the incorporation of the town of Hardin in 1870, was not invalid for that reason, since the dedication of land to the public is legally effective, although at the time there is no corporate entity or artificial grantee in whom the title is vested. [Board of Regents v. Painter, 102 Mo. l. c. 469.] In this respect a dedication differs from a grant, which presupposes the existence of a competent taker of the estate conveyed. [13 Cyc. 439, par. 2 and cases cited.]

It is of the essence of a dedication that it should appropriate the land for public use and that such should be the intent of the owner and that it should be accepted by the public. It may be effected without any writing, not being within the Statute of Frauds, and all of its elements may be shown by positive or circumstantial evidence of acts in pais. [Heitz v. St. Louis, 110 Mo. 618; McGrath v. Nevada, 188 Mo. l. c. 107; Curran v. St. Joseph, 264 Mo. l. c. 659; Benton v. St. Louis, 217 Mo. l. c. 705.] In many states provision is made for plats of and additions to villages and cities and the recording of such plats. These are termed statutory dedications. [R. S. 1909, ch. 97, secs. 10290 et seq.; 13 Cyc. 440.] Such dedications and their legal effect are controlled wholly by the terms of the statute authorizing them, but they do not in any way restrict the common-law power of an owner to devote his land, or some easements therein, to the use of the public. Hence the rule is that a statutory dedication imperfectly made will be held as valid as a common law dedication if good as such. [Rose v. St. Charles, 49 Mo. 509.] All dedications when complete are irrevocable.

The record in this ease shows the due filing and recording in 1869 of a plat of Hardin which embraced the land in suit. That plat designates the streets, alleys and subdivisions of the town, except that it does not subdivide the small portion involved in this action. The town as laid off on the plat was then, or immediately afterward, incorporated as a village and made use of the portion described in this suit for public purposes, as heretofore stated, from 1869 tc 1912, when the defendants first asserted their claims.

Waiving the imperfection of this plat as a statutory dedication, there is no escape from the conclusion that it was a clear and unequivocal devotion of their property made by the owners and signatories of the plat. And it is equally evident that the town of Hardin accepted the trust to it on behalf of the public by manifold and normal acts of user from 1869 to 1912, as shown in the foregoing statement of facts. Under the law this completed the dedication and invested the town with the title to and easements in the land in trust to the public. Hence there is no doubt that it should have recovered against appellant Ferguson.

ni. It is urged, however, that the respondent municipality is estopped to enforce its rights as to the lot claimed by appellant Ferguson for that a portion of it was described in a subsequent plat of an addition to the town filed by the ancestor of the grantors, who quit-claimed to him. That view is untenable for the reason that since the first plat was a valid dedication, the city could not lose its title because a- portion of the dedicated strip was included in an addition subsequently laid out by one of the signatories of the original dedication. Nor is there any evidence the city induced the defendants to take any steps to their prejudice by allowing the plat of the subsequent addition to be filed. Under the circumstances shown in the record no estoppel arose against the respondent city. [Clay Products v. St. Louis, 246 Mo. l. c. 461; Wright v. Doniphan, 169 Mo. l. c. 614; St. Louis v. Mo. Pac. Ry., 114 Mo. l. c. 24; Williams v. St. Louis, 120 Mo. 403; Blodgett v. Perry, 97 Mo. l. c. 273; St. Louis v. Gorman, 29 Mo. 593; Elliott on Roads & Streets (2 Ed.), sec. 884.]

It follows that the judgment in this case must be affirmed. It is so ordered.

All concur.