author: PER CURIAM.

text:
    J. A. BLADES et al., Appellants, v. GEORGE E. HAWKINS et al.
    Division Two,
    February 27, 1912.
    1. CONTRACT WITH COUNTY: Entered of Record: Acceptance: Duplicates in Writing: Section 2779. When a county court enters of record its order for the employment of an expert accountant for work to be performed wholly in the future, setting forth the details of the employment and the compensation ' to be paid, and said accountant files his written acceptance of the employment, the contract, so far as its mode of execution is concerned, is complete. The purpose of Sec. 2779, R. S. 1909, saying that duplicate copies of every such contract shall be executed, one of which shall be filed with the county clerk and shall not be taken from his office except to be used as evidence in some legal matter, and that, in case of variance between the copies, the one on file with the clerk shall control, was to preserve controlling evidence of the terms of the contract in case of a dispute as to its construction. The validity of the contract is not, by that section, made dependent on its having been executed in duplicate.
    2. COUNTY COURTS: Powers: Must be Expressed or Necessarily Implied. The power of the county Court to contract, or to do any other act, must be found in an express legislative grant, or else impliéd as essential to the proper execution of powers expressly granted or duties expressly imposed. Nor will power to do a thing be implied to belong to a county court unless it is cognate to the purpose for which the court was created. Sec. 6759, R. S. 1899 (Sec. 2778, R. S. 1909), detailing the scope of the powers of a county court or other municipality, is but declaratory of the common law.
    3. -: Power to Employ Accountant. The county court had power in 1907 to employ an expert accountant to examine and audit the official accounts and public records of present and prior county officials, for the purpose of ascertaining whether or not they were indebted to the county or were holding back moneys belonging to it. This power is not expressed in the statutes, but is implied as essential in those expressly granted, which make the county court the fiscal agent of the county, and impose upon it a supervisory control over the collection and preservation of its funds, require the treasurer, collector, sheriff, marshal, clerks, constables and other officers chargeable with money belonging to the county, to make a true report and render a true account and make settlement with it, and require the court to audit and adjust all accounts to which the county shall be a party and enforce the collection of any money found due the county.
    4. -: -: Sec. 3730; Duties to Audit.on Court. Section 1778, R. S. 1899 (Sec. 3730, R. S. 1909), saying that, in settlements made by county courts with treasurers and other officers holding funds, it shall be the duty of the court or some judge thereof to ascertain, by actual examination and count, the amount of money in the hands of the officer, etc., has nothing to do with the power of the county court to employ an expert accountant to audit the accounts of all county officers, with the view of ascertaining if any of them are indebted to the county. That statute relates to the examination and count of balances in the hands of the officials when they make settlements, and its purpose is to prevent a perfunctory settlement.
    Appeal from Greene Circuit Court. — Hon. J. T. Neville. Judge.
    Affirmed.

      G. W. Thornbury, O. F. White and E. J. White for appellants.

      Sebree <& Farrington and J. W. Suddath & Son for respondents.
   PER CURIAM.

This ease was certified to this court by the St. Louis Court of Appeals, one of the judges dissenting from the opinion on the ground that, in his judgment, it is in conflict with the decision of this court in the case of Wolcott v. Lawrence County, 26 Mo. 277. We think there is no such conflict. The following majority opinion of the Court of Appeals, written by Goode, J., is approved and adopted as the opinion of this court, and the judgment is affirmed.

This is a suit in equity to enjoin the respondents, as judges of the county court of Stone county, from issuing to L. U. Crawford a warrant to pay said Crawford for services rendered as an expert accountant in examining, checking up and auditing the accounts of various officers of Stone county, pursuant to employment by the county court. The suit was instituted at the relation of certain citizens and taxpayers, who seek to prevent issuance of the warrant for the reason that the employment of Crawford was without authority of law, and public money cannot be disbursed to pay him.

Respondents answered that on ox about April 12, 1907, certain of the officers of Stone county then in office, and certain other persons who theretofore had been in office, were delinquent in their accounts, and had failed to pay to the treasurer of the couniy large sums of money due the county, aggregating five thousand dollars; that certain of the officers had made incorrect returns to the court of the earnings of their respective offices, and other persons who had occupied the offices of treasurer and collector had made incorrect and false settlements of their accounts, and had led the court to- believe they had made correct .returns of the fees due from their respective offices; that knowledge of this had come to respondents in a general way, but they were not apprised of who were delinquent, or in what particulars the delinquencies consisted; that though respondents and their predecessors, as judges of the county court, had performed to the best of their ability the duty of' examining the accounts and records of the various officers of the county, yet neither respondents nor their predecessors were expert accountants or auditors; that respondents were not able to audit the books of the county and recover the amount of the items delinquent because they lacked the necessary skill, and unless said work was done the amount of the delinquency would be wholly lost; that it would be greatly to the interest of the taxpayers and the financial affairs of the county for an accountant to be employed to audit the various books of the officials then in office and theretofore in office; wherefore respondents entered into a contract with L. U. Crawford, an expert accountant, to audit said books and check up the accounts of the various officers for such periods as the court might direct; that' Crawford was to receive for his services ten dollars a day and expenses limited to his boa"rd while employed in the work and one trip to and from Kansas City, Missouri, his place of residence; that said contract was entered into in good faith by the county court through an agent appointed for that, purpose, to-wit, the prosecuting attorney; that shortly after he was hired, Crawford began the work of auditing the books, checking up the accounts of the county officers and making reports of his action to the court; that he had completed his services, and the compensation due him under the contract amounted to about one thousand dollars; that from the work done by him in investigating the accounts of officers and auditing the books the county had recovered from delinquent officials, either now or theretofore in office, and from other persons holding money belonging to said county, the sum of more than two thousand dollars, and the further sum of three thousand dollars, still delinquent, would be recovered; that without said services all this money would have been lost to the taxpayers. Eespondents denied the contract was without authority of law, and affirmed it was entered into in the manner provided by law, and denied certain other allegations of the petition which need not be stated.

After a temporary restraining order had been issued by the circuit court of Stone county, the case went on change of venue to Greene county, where it was tried, and judgment entered finding the issues for respondents on the merits, dissolving the temporary injunction and dismissing the petition.

It appears from the record of the county court of Stone county that on or about April 12, 1907, the court ordered the prosecuting attorney to negotiate with expert accountants for the purpose of employing a suitable one to investigate the records and submit a report to the court. About the same date the court spread on its record an entry reciting that, whereas the court had found it advisable to examine the accounts of the various county officers, it was ordered that L. U. Crawford be authorized to check up, audit and examine the accounts of said officers during such periods as the court might direct, and make a report in detail of his findings; that said Crawford be paid for his services ten dollars a day and expenses, it being understood his expenses should be limited to board and car fare for one trip from Kansas City and return; that while the examination of the books was in progress each officer should render every assistance possible to expedite the work, and Crawford should be given free access to all records and files in the various offices which he might desire to use in the investigation. Crawford accepted this employment in writing, agreeing to check up and audit the accounts of the county officers for such periods as might be designated by the court, and on the terms expressed in the order. This acceptance was filed and spread on the record. It was admitted at the trial that Crawford had performed a large part of the services contracted for at the time the injunction was issued, -and that at said date the respondents were about to order a warrant on the treasury to pay for said services at the rate of ten dollars a day. It was further admitted Crawford began performance of the work shortly after he was employed; that he performed the services for which he was hired, and audited the books of the various officers then in office or who had been in office theretofore; that he had discovered discrepancies and delinquencies to the amount of $2,229.24 in the accounts of certain officials, to-wit, three ex-county treasurers, an ex-sheriff, the cashier of the county depositary, and one other person; that these sums due the county were discovered by Crawford during his investigation, and had been paid into the treasury. It was further admitted there was $3,000 more which Crawford claimed to have discovered to be due from other men holding office and who had theretofore held office, but which relators denied was due the county. It was admitted .respondents were not expert accountants, but were all farmers; that all the relators, except one, who are asking an injunction against paying Crawford, are bondsmen of one of the delinquent officials; that, if the warrant should be issued and paid, the respondents and the prosecuting attorney would refuse to take action to recover the amount of it, as they contend it is a legal obligation. The temporary injunction was sued out June 14, 1907. On June 17th, pursuant to an order of the county court, a contract in duplicate was entered into between "W. E. Renfro, prosecuting attorney and agent of the county, and Crawford. This contract embodied the terms theretofore stated and contained in the original order of the county court for the employment of Crawford, entered April 12, 1907.

The right of the county court to issue a warrant to Crawford in payment for his services is denied on two grounds: First, because said court had no authority to employ an accountant to examine and audit the books of the county and the accounts of its officers; second, because, if it had this power, the contract of employment was not entered into in the manner provided by law.

Tn support of both these grounds certain statutes are invoked, and among others section 6759, Revised Statutes 1899 (Sec. 2778, R. S. 1909), which says no county, city, etc., shall make a contract unless the same is within the scope of its powers or is expressly authorized by law, or unless it is made on a consideration wholly to be performed or executed subsequent to the making, and that the contract, including the consideration, shall be in writing, dated when made and subscribed by the parties thereto or by an agent authorized by law- and duly appointed in writing. The next section (sec. 6760) says duplicate copies shall be executed of every such contract, one of which shall be filed in the office of the clerk of the county court if made by a county, or with the proper officer if the contract is made by some other body politic; that it shall not be taken thence except to be used as evidence in some legal matter or cause, and that, in case of variance between the copies, the one on file with the designated custodian shall control the construction. The contract in question was not reduced to duplicate writings signed by Crawford and Renfro, agent of the county, until June 17th, three days after the temporary injunction was issued, and after the work for which Crawford was employed had been done. For this reason, it is contended, the employment was void, and the county court was without authority to pay Crawford. This is not the interpretation put on the statutes we have cited by the Supreme Court. In Globe Furnishing Co. v. School Dist., 51 Mo. App. 549, it was held by a majority of the members of the Kansas City Court of Appeals that failure to enter into a contract with a public municipality (in said case a school district) by. executing duplicate copies in writing, was fatal to the validity of the contract. One of the judges dissented, and held that, when such a contract was reduced to writing and signed by the parties, it became binding and operative, as the statute requiring duplicate copies was directory. In Saleno v. Neosho, 127 Mo. 627, the question was presented for decision to the Supreme Court. In said case it appeared the city of Neosho had passed an ordinance granting the plaintiff a waterworks franchise, and agreeing to pay a certain sum yearly for water hydrants used by the city. After this ordinance was ratified by a vote of the people, plaintiff filed with the board of aldermen his written acceptance of the contract contained in the ordinance. It thus will be seen the cause is identical with the present one as regards the form of the contract originally entered into, because, in the present case, the county court entered of record an order employing Crawford for a specified work on specified terms, and he filed his written acceptance. The Supreme Court said in the Neosho case the validity of the contract for the hydrants was in no way dependent on its having been executed in duplicate as required by the statute aforesaid, as the purpose of said statute was to provide controlling evidence of the terms of the contract in case a dispute arose regarding its terms. See, too, Aurora Water Co. v. Aurora, 129 Mo. 540; McShane v. School Dist., 70 Mo. App. 624. When the county court of Stone county entered of record its order for the employment of Crawford for work wholly to be performed in the future, setting forth the details of the employment and the compensation to be paid, and Crawford filed his written acceptance of the employment, we think, under the above authorities, the contract was complete as far as the mode of its execution is concerned.

The more important proposition, and the one chiefly controverted, is as to the power of the county court to employ an expert accountant to audit the public records and the accounts of present and prior officials. Its power to do so must be found in some express statutory grant, or else implied as essential to the proper execution of powers expressly granted or duties expressly imposed. Section 6759, Revised Statutes 1899, prohibits counties and other municipal bodies from making any contracts not within the scope of the powers of the municipality or expressly authorized by law. This provision is but declaratory of the common law; for these public corporations never have been deemed to possess authority to contract, or do any other act, unless the power was granted by statute or could be implied because necessary and incidental to the due performance of powers granted or duties enjoined. This doctrine applies to county courts and commissioners, as well as to the governing bodies of other subordinate political corporations. [7 Am. & Eng. Ency. Law, sec. 789; Wolcott v. Lawrence Co., 26 Mo. 277; Sturgeon v. Hampton, 88 Mo. 204.] There is in our statutes no grant of authority to a county court to employ an expert to audit and examine the books and accounts of the county and its officers. Hence, if this authority existed in the present instance, it was because the law implied it as' essential to the due exercise of powers specifically vested in the county court by statute or the performance of a duty specifically required of said tribunals. The courts are conservative in implying powers not expressly given. One limitation imposed by law on these implications is that no power will be implied to belong to a public corporation unless it is cognate to the purpose for which the corporation was created. [Grant Co. v. Bradford, 72 Ind. 455; 2 Abbott, Mun Corp., sec. 708, p. 1672.] Therefore, in determining whether or not the county court of Stone county had 'authority to employ an expert to look over official hooks and accounts, we must call to mind the duties of such a court. A county court is the general fiscal agent of the county, and is possessed of a supervisory power over the collection and preservation of its funds. Various officials, such as treasurers,' collectors, sheriffs, marshals, clerks and constables, as well as other persons chargeable with money belonging to the county, are required to report to and make settlements with said court. All these officials and persons must render-accounts to the county court at stated terms 'thereof, pay any balance due the county into the treasury, take duplicate receipts, and deposit them with the clerk of the court. [Sec. 6781, and other sections, Chap. 97, E. S. 1899.] If any person charged with the duty of reporting to and settling with the court fails to render a true account, it is made the duty of the court to adjust the account of the delinquent according to the best information it can obtain, ascertain the balance due, and require said balance to be paid into the treasury. Other sections following section 6782 of the statutes provide for proceedings by the court against delinquents. In addition to said provisions, section 6790 requires the court to audit and adjust all accounts to which the county shall be a party, order payment out of the treasury of any sum of money found due by the county on such accounts, enforce the collection of money due it, order suit to be brought on the bond of any delinquent, issue process to secure the attendance of any person deemed necessary to be examined in the investigation of any account, compel the attendance of such person and the production of accounts, books, documents and papers, and examine all parties and witnesses on oath touching the investigation of any account. The various provisions of the statutes demonstrate that it is not only within the power, but is the duty, of the county court to look after public funds, examine and investigate the accounts of the different officials and other persons, enforce the collection of money due the county, and order suits to be brought on the bonds of delinquents. In short, responsibility for the safety of public moneys, the accuracy and honesty of the accounts and settlements of officials, and the collection of defalcations, is imposed on county courts. The question for decision is whether the express delegation of those powers and duties by the Legislature carried with it the authority to employ an expert to look over books and documents' in order to ascertain whether officials and other persons chargeable with public moneys had rendered correct and faithful accounts, and had made just settlements with the court. In our opinion this question ought to be answered in the affirmative. While it is true the law is strict in limiting the authority of these courts, it never has been held that they have no authority except what the statutes confer in so many words. The universal doctrine is that certain incidental powers germane to the authority and duties expressly delegated, and indispensable to their performance, may be exercised. [7 Am. & Eng. Ency. Law (2 Ed.), pp. 987, 989, and cases cited in notes.]

In Boggs v. Caldwell Co., 28 Mo. 586, the Supreme Court allowed a bill for services rendered in indexing the deed records of a county pursuant to an employment by the county court. In the brief against the. demand Wolcott v. Lawrence Co., supra, was cited in support of the proposition that the county court was without power to make the contract; but the Supreme Court deduced the power from the duty of the county court to look after the property of the county, and said that, though it was the duty of recorders to make up their indexes without extra compensation, yet in the course of time it might happen these books would become unfit for use and need to be renewed. We regard that case'in point, for, though the work was different from what respondents contracted for, it was not more essential to the performance of a statutory duty of the county court.

The precise question at bar was decided in Duncan v. County Comm’rs, 101 Ind. 403. Those commissioners, who in Indiana correspond to our county courts, had employed said plaintiff to examine and report on the accounts of the treasurer of the county, and the plaintiff, having done the work, asked payment for his services. The Indiana statute relied on as authorizing the employment was one giving the board of commissioners power to audit the accounts of all officers having the handling' and disbursement of the funds of the county, a statute of no broader scope than those we have cited. It was held the commissioners had full authority with reference to the adjustment of public finances, and, as incident thereto, power to employ an accountant.

As impugning the authority of respondents to make the contract in dispute, much stress is laid on section 1778, Revised Statutes 1899. Said section says that in the settlement required by law to be made with county courts by treasurers and other officers holding funds, it shall be the duty of the county court or! some judge thereof to ascertain, by actual examination and count, the amount in the hands of an officer and to what particular fund it appertains, and that such examination and count shall include all funds on hand to the day when the settlement is made. Because the section requires the county court, or some judge thereof, to ascertain, by actual examination and count, the balances in the hands of officials, it is argued that no one else can be employed to do or assist in the work. This would not follow necessarily, we think, but do not decide, for in our opinion said statute has nothing to do with the present case. It relates to the examination and count of balances in the hands of officials when they settle with the county court. The idea is to prevent a perfunctory settlement' by requiring the court to make an actual examination and count of the balances and .funds, and ascertain to what particular fund the money belongs. Crawford was not hired for such a work, was not hired to examine the account tendered by some official at one of the periodical settlements required by law, nor to count the funds in his hands. He was employed to go over the books, papers and accounts of officials who were in office or theretofore had been, during such periods as the court might direct. Settlements had been made by different officials at different times during those periods; and, according to the answer, which there is no evidence to disprove, the court had examined and counted the balances as required by law when the settlements were made. Nevertheless, respondents had heard of defalcations by certain officials, and of discrepancies in their accounts which had escaped attention at these settlements. In' order to ascertain whether there was merit in these reports, respondents, who were farmers and not trained in bookkeeping or the investigation of accounts, deemed it necessary to employ an expert. It turned out the reports were well'founded, and a substantial sum was paid into the treasury without controversy as the result of the expert work. We deem authority to contract for such work is not only wholesome, but indispensable to an accurate knowledge by the county court' of the financial condition of the county.

The judgment is affirmed.


source: Caselaw Access Project

author: KENNISIT, P. J.

license: Public Domain

text:
    ORVILLE D. JONES, Appellant, v. PULITZER PUBLISHING COMPANY.
    Division Two,
    February 27, 1912.
    1. LIBEL: Privilege: Made an Issue by Appellant’s Instruction. A party on appeal will not be permitted to shift from a position he voluntarily assumed at the trial. Where the court at the request of appellant, a plaintiff in a libel suit, gave an instruction telling the jury that defendant claimed the publication complained of .was privileged, and whether or not it was a full and fair report of the testimony contained in certain depositions was a question of fact for the jury, he cannot complain that the trial court refused to further instruct that the publication was not privileged. By his own instruction the court submitted that question of fact to the jury.
    2. -: -: Depositions on File. The hearing of the motion for alimony and of defendant’s plea to the jurisdiction of the court in a divorce suit is judicial action; and a publication on the next day by a newspaper of an abridgment of the testimony contained in depositions then on file in the court, together with the pleadings, if fair, was privileged.
    3. -: -: Obscene and Scandalous Matter: No Instruction: Not Pleaded. The court is not required to give instructions of its own motion in a civil case. Hence plaintiff’s complaint that the trial court erred in not holding that the publication complained of in his libel suit contained matter obscene, scandalous and unfit for publication, will not be considered on his appeal, if he asked no instruction on that theory of the case, and no such issue was made by the pleadings.
    4. -: Privileged Matter Libelous Per Se: Unfair Comment: Truthfulness: Not in Issue: Modification of Erroneous Instruction. Defendant published an abridgment of certain depositions on file in court which contained matter libelous per se. The answer did not justify by pleading the truth of the publication', but pleaded that the publication “was a reasonably fair and impartial statement and account of testimony given in open court upon the trial 9f the divorce suit” brought against plaintiff by his wife, and as such was privileged, and that issue was met by a general denial in the reply. Plaintiff asked an instruction, which, after setting out the publication in full, told the jury that, whether or not said publication was a full and fair report of the testimony contained in the depositions, was a question of fact to be determined by them, and then added: “But the court instructs you as a matter of law that, if said article contained matter and comment which are not true, then such matter of comment deprives it of the benefits of the legal privilege claimed by defendant, if said privilege 'otherwise existed; so that the plea of privilege set up by defendant in its amended answer is no defense to the publication of said article, unless you find that all the statements therein are true as a matter of fact.” Held, that these words relate to matters clearly outside the issues, in that they submit the truth or falsity of what is termed comment as an issue of fact, and hence the court did not err in striking them out; but it also, for the same and a better reason, erred in substituting in lieu thereof the words: “But the court instructs you, as a matter of law, that if said article contains matter of unfair comments, derogatory to plaintiff, which are not true, then such matter of comment is not entitled to be regarded by you and is not privileged; so that the pleas of privilege as set up by defendant in its amended answer is not defense to the publication of said comments, unless you find them true as a matter of fact;” since the modification attempts to separate the publication into two parts, report and comment, leaving what is report under the protection of the privilege, and what is unfair comment under the defense of justification. The issue of the truth of no part of the publication is found in the pleadings, and should not have been submitted to the jury.
    5. -: -: Segregating Comment and Report. If either party wishes to separate comment from a condensed report containing matter libelous per se, he should assume that burden, by suggesting a guide that will enable the jury to make the distinction. But in this case neither the pleadings nor the instructions suggested a guide, nor was the issue of unfair comment, or the truth of such comment, or whether a part of the publication consisted of comment, in the case, and not only were such issues not recognized in the instructions, but the jury were expressly told in one instruction that the only issue was whether the publication was a fair report of the court proceedings. Another instruction, therefore, that told the jury that if the publication contained matter of unfair comment, which was not true, such matter of comment is not privileged, not only lugged in issues not pleaded, and failed to contain any guide for determining what was comment and what report, but was also inconsistent with the other that said the only issue was whether the report was fair. ■ -
    6. -: Report of Court Proceedings: Reasonably Fair. It is of the greatest public importance that the people should be informed of the proceedings in their courts, and where those proceedings are of great length the law does not require a verbatim report but permits an abridged report, provided it is fair and reasonably correct. But the report must be fair, by which is meant that it must be just and impartial. Reasonably fair is not sufficient, for if that were the test, then the publisher would not be liable for publishing an unfair report, provided it were not unreasonably so; and a whole series of instructions that, by frequent reiteration, excuses the publication of testimony libelous per se contained in depositions, if the abridgment was a “reasonably fair and correct report,” were reversible error.
    Appeal from St. Louis City Circuit Court. — Son. Daniel G. Taylor, Judge.
    Reversed and remanded.

      Jos. Wheless and J. G. Trimble for appellant.
    (1) The two articles set out in the first and second counts are not privileged. The scandalous deposition of the negro was taken April 9 and filed May 2, 1906. The depositions commented on by articles in the first and second counts were taken April 20-21 by defendant and filed April 25. The cause had not been called for trial or the depositions presented in the court for any purpose; cause was not called for trial until June 14, 1906. Defendant’s counsel, aware of the law in such case, had alleged in their amended answer that the depositions had been presented and read in court on the trial of a motion for alimony. They learned the allegations were not fact and asked to strike them out and did it. Meriwether v. Knapp, 211 Mo. 199, does not justify the action of the lower court in this case. Brown v. Globe-Democrat, 213 Mo. 636; Barber v. Post-Dispatch, 3 Mo. App. 377; Callahan v. Ingraham, 122 Mo. 366. (2) By the addition made by the court to the plaintiff’s instructions, the court declared the law to be that only “the matter of unfair comments, not true” was not privileged. That put before the jury the task of determining how much of the two articles of about seven hundred and twenty words each, that purport to fairly state the contents of the deposition of eighteen persons, was report and how much was comment. It denied them the right of determining whether the part of them that was report was libelous at all; and they were not permitted to find the comments were libelous unless they also found them to be “untrue in fact.” The defendant did not put the truth of the statements and reports in the articles in issue by plea alleging they were true. And the court gave plaintiff an instruction that, “the truth of the testimony as stated in the publications was not in issue;” and for “the purpose of this trial it is your duty to treat them as untrue. ’ ’ The articles as applied to the depositions show¡ them in fact to be nothing but comment. They state and insinuate each one that affidavits came to plaintiff’s knowledge and he being guilty took time by the forelock to impeach the testimony of the witness. (3) The actual testimony of the witnesses with its suggestions was too obscene to publish under the claim of the privilege. It was all in black and white before the court, in the printed articles and in the depositions and written transcript of the evidence — the facts and the occasion as to the whole matter undisputed. And the question whether they-were fit to be published under the claim of privilege was purely one of law for the court. Callahan v. Ingraham, 122 Mo. 366; Arnold v. Jewit, 125 Mo. 252; New-ell on Slander and Libel (2 Ed.), sec. 150; In re Evening News, 3 Times L. R'ep. 255; Odgers on Libel and Slander (2d Ed.), 191; Townsend on Libel and Slander, 366; Rex v. Salisbury, 1 Ld. Raymond 341; Rex v. Carlisle, 3 B. & A. 167; State v. Appling, 25 Mo. 315; State v. Rose, 32 Mo. 250; R. S. 1899, secs. 2176, 2177; R. S. 1900, sec. 4730; State v. VjanWey, 136 Mo. 234; 18 Am. and Eng. Ency. Law (2 Ed.), 1025. Words imputing adultery or fornication to a person are actionable per se. R. S. 1909, sec. 5442.; Birch v. Benton, 26 Mo. 160; Brown v. Wintasch, 110 Mo. App. 273; Brown v. Globe, 213 Mo. 611; Cook v. Globe (Printing Co., 227 Mo. 534. (4) All the counts of the answer repeat that defendants reports of testimony were “reasonably fair.” The court adopted the language of the answer and told the jury the reports need only be “reasonably fair.” It was not alleged they were fair, nor were the jury, directed to determine whether they were fair. The language of the authorities is they must be fair. “Reasonably fair” used in an instruction in such case is senseless. Who is to determine what is reasonable, the court or jury? The law is if the language and occasion are undisputed, it is purely a question of law for the court.

      Judson & Green for respondent.
    (1) The articles of April 28th and 29th, sued on in the first and second counts of appellant’s petition, are privileged, if fair reports of the court proceedings they refer to, because there was such a hearing in open court on April 27th, upon the motion for alimony and the plea in abatement, as gave respondent a right to publish the proceedings had on that day, and also to publish a statement of the pleadings and depositions then on file in the easel Meriwether v. Knapp & Co., 211 Mo. 219. (2) The respondent had a .right to publish the contents of these eighteen depositions then on file in the case for the further reason, that appellant himself had taken these eighteen depositions and himself had caused them to be filed in the divorce case to • be used as evidence in his behalf at the trial thereof. By taking and filing these depositions appellant himself published their contents to the world, and declared that the testimony therein contained was relevant and material to the issues of that case. He should not be heard to complain now because respondent has published that which he himself had collected and filed and first published to the world. (3) No matter can be libelous if it is not false. Therefore, the trial court did not err in the first instruction given for plaintiff which, he modified. . He correctly stated to the jury in this modified instruction that if there were unfair comments in the articles complained of, they were libelous, if they were untrue and were derogatory of appellant. And this is the law. Julian v. Kansas City Star, 209 Mo. 71; Diener v. Star Chronicle, 135 S. W. 6. (4) Whatever error there is in this modified instruction, if there is any,v was invited by appellant because the instruction, as originally prepared and offered by appellant himself, told the jury that if the comments in these articles were found to be true as a matter of fact then this was a good defense for respondent. (5) ■ It was not error, which appellant can complain of, for the court to submit to the jury for their determination the fairness' of these reports of proceedings in said divorce suit. Boogher v. Knapp & Co., 97 Mo. 122; Meriwether v. Knapp & Co., 211 Mo. 199. Under the facts disclosed by the record herein, the respondent might have complained, had it lost the verdict, that under the evidence herein the court should have declared, as a matter of law, that all of these articles were fair reports. But appellant cannot complain of that error. Ackerman v. Jones, 37 N. Y. Sup. 42; Salisbury v. Advertising Co., 45 Hun. 120. (6) Appellant did not ask the trial court to declare as a matter of law that these articles were not fair reports and that, therefore, they were not privileged. His own instructions requested the submission of that question to the jury. Since he asked no such instruction he cannot complain because the court did not give one of its own motion. Minter v. Bradstreet, 174 Mo. 444; State ex rel. v. Branch, 151 Mo. 622. (7) The words “reasonably fair,” which are found in one of the court’s instructions given at the request of respondent, and which are complained of by appellant as misleading, are combined in said instruction with the word “correct,” so that the full phrase is “a reasonably fair and correct report,” and the instruction then tells the jury just what is meant by the expression, “a reasonably fair and correct report,” so that the jury could not have been misled thereby.
   KENNISIT, P. J.

This action for libel was brought by appellant, Orville D. Jones, against respondent, Pulitzer Publishing Company, in the circuit court of the city of St. Louis. Plaintiff is an attorney at law, residing at Edina, Missouri. The defendant is a corporation, and owns and publishes the newspaper known as The St. Louis Post-Dispatch, published at the city of St. Louis, the paper in which the alleged libelous publication appeared. The petition contains six counts. . Upon a trial the jury returned a verdict for the defendant, and from the judgment entered thereon the plaintiff appealed to this court.

It appears from the pleadings and the record before us that plaintiff’s wife, in the month of January, 1906, left her home in Edina, for a visit with relatives in St. Louis. She did not return to her home, but in the month of April next following filed a suit for divorce against her husband, the plaintiff herein, in the circuit court of the said city of St. Louis. Before the divorce suit was filed plaintiff’s wife went to Edina and appeared before a notary public, accompanied by a negro woman named Katie Bryant, who had formerly been employed by plaintiff and his wife as a domestic. Both women made oath to certain affidavits which plaintiff’s wife had in her possession, already prepared, and the notary public was requested to attach,his jurat without reading the contents, which was accordingly done. ■, After the filing of the divorce suit plaintiff’s wife took depositions in the city of St. Louis, in which charges of improper and immoral conduct, .on the part of plaintiff with said Katie Bryant, were made by the plaintiff’s wife, and about the same time the notary public informed plaintiff of the incident of his wife and Katie Bryant having executed the said affidavits before him. Thereupon, on April 20th and 21st, plaintiff took the depositions of eighteen witnesses in Edina, to be used as evidence in the divorce suit, for the purpose of contradicting the evidence on the part of his wife by which she attempted to prove that plaintiff had sought to have improper relations with Katie Bryant. These depositions were filed by plaintiff in the office of the clerk of the circuit court in the city of St. Louis on the 25th day of April, 1906. Plaintiff’s wife filed a motion for temporary alimony in the divorce suit, and plaintiff filed an answer to the petition, containing, in addition to a general denial, a plea to the jurisdiction of the court, on the ground that his wife was not a resident of the city of St. Louis. The motion for temporary alimony and the plea to the jurisdiction were taken up by the court on April 27, 1906, and after hearing testimony thereon the court set the case for trial on the merits on the 14th day of June following. The cause came on for trial on the date set, and the taking of testimony occupied three days. On the 28th day of April, 1906, the day after the hearing of the motion for temporary alimony and the plea in abatement, and again on the day following, the Post-Dispatch published in its columns a report of the case, including an abridgment of the testimony^ in the depositions theretofore taken and filed in court by plaintiff. The first and second counts of the petition in this case are based upon the alleged libelous publication in the said issues of April 28th and 29th, the latter being a reproduction of the article published the day before. The other counts are based upon reports of the testimony in the divorce case as published in the daily editions of the paper during the progress of the trial on the merits.

The answer contained substantially the same defenses to each count of the petition. It admitted the formal allegations of inducement and the publication of the article complained of, but denied that the article published was a libel on. plaintiff. The answer to each count further alleged that the publication was a reasonably fair and impartial report of the testimony in the divorce case, and therefore privileged as such under the law. It was further alleged, by way of mitigation, that when the court had decided the divorce case in favor of the plaintiff herein, the defendant published the fact of said favorable decision and stated that such decision discredited the testimony against plaintiff at the trial. The reply was a general denial of all new matter in each paragraph of the answer.

At the close of all the evidence appellant voluntarily dismissed as to the fourth and fifth counts of the petition, and the case was submitted to the jury upon the remaining counts, with the result heretofore stated.

As it is conceded that the publications, if false and not privileged, were libelous per se on their face, we do not deem it necessary to set them out at length. Such parts of the pleadings and the instructions as may be necessary to an understanding of the questions discussed, will be set out in the course of the opinion.

The Constitution of this State provides that in all suits for libel the jury under the direction of the court, shall determine both the law and the fact. In •this case no complaint is made by appellant as to the ruling of the court in admitting or excluding evidence, and as the verdict of the jury, upon the issue of libel or no libel, was for the defendant, the only matter for review upon this appeal is the action of the court in giving and refusing instructions to the jury.

I. Appellant first complains that the court erred “in refusing plaintiff’s instruction declaring the law to be that the articles complained of in the first and second counts in the petition were not privileged, ’ ’ for the reason that said articles were not reports of judicial proceedings.

The first and second counts of the petition were based upon the articles published in the issues of the paper of the 28th and 29th of April, and each purported to give an abridged report of the testimony contained in the depositions theretofore taken and filed in court by plaintiff. When the motion for temporary alimony and the plea in abatement were heard on the 27th of April, although testimony was introduced, the depositions were not used and had not been offered .in evidence when their contents were published in the articles complained of in said first and second counts. At the request of the plaintiff the court instructed the jury that the defendant claimed the articles as published were privileged as a full and fair report of the testimony contained in depositions on file in court and that whether said publications were a full and fair report of such testimony was a question of fact to be determined by the jury, under other instructions of the court.

Under the facts thus shown by the record, there are two sufficient answers to this assignment of error.

First: .Appellant’s own instructions submitted the issue of the fairness of the published reports of the contents of the depositions, as a question of fact to be determined by the jury, and having tried the case upon that theory he will not be permitted to shift his position on appeal. “When a party by instructions, has submitted an issue to a trial court as one of fact, he cannot, on appeal, maintain that it should have been-treated as an issue of law.” [Ellis v. Harrison, 104 Mo. 307; Sawyer v. Walker, 204 Mo. 133.]

Second:. When the hearing was had in court on the motion for alimony and plea in abatement, the depositions were on file, and we think that hearing was such judicial action in the case that the publication of a fair report of the proceedings, including the pleadings and the depositions on file, was privileged under the law. [Meriwether v. Knapp & Co., 211 Mo. 199.]

II. Error is assigned to the action of the court “in not holding that the articles were obscene, scandalous and unfit for publication, as a matter of law.” By section 4737, Revised Statutes 1909, it is made a misdemeanor, punishable by fine, or imprisonment, or both, for any person to publish in a newspaper any vulgar, scandalous, obscene or immoral pleadings or evidence in a judicial proceeding. In addition to the prohibition of the statute it is the established law that the privilege of publishing a fair report of judicial proceedings does not extend to the publication of what is obscene and indecent. But appellant does not bring this case within that exception to the law of privilege, for the reason that he asked no instruction upon that theory of the case, and the court is not required to give instructions of its own motion in a civil suit. Neither was such an issue made by the pleadings. [Brown v. Globe Co., 213 Mo. 611; Morgan v. Mulhall, 214 Mo. 451.]

III. Complaint is made that the court erred in refusing, in the form asked, appellant’s instructions numbered 1, 2, 3 and 4, on the first, second, third and sixth counts of the petition, and in giving them as modified by the court.

These instructions were the same in form, the difference being only in so far as was necessary to adapt them to the several publications set forth in the different counts. The same modification was made by the court in each instruction, so that what is said as to one will apply equally to the others.

Instruction numbered 1, as requested by appellant, was as follows:

“The plaintiff sues the defendant corporation for the publication of and concerning himself in the St. Louis Post-Dispatch of the six newspaper articles set out in the six counts of his petition and alleges that the same are false and malicious and libelous; and the publication of such articles is admitted by the defendant. In the first count of his petition plaintiff complains of the publication by the defendant, in its issue of Saturday, April 28, 1906, of the article, as follows, to-wit: [Here follows a copy of the publication complained of.]
“In respect of the foregoing publication, defendant claims in the amended answer, among other defenses, that the article complained of contains a full and fair report of the testimony of witnesses contained in depositions on file in court, and that the publication of the same as an item of news is privileged in law.
“Whether or not said publication is a full and fair .report of such testimony, is a question of fact to be determined by you under other instructions of the court.
■“But the court instructs you as a matter of law, that if said article contains matter and comments which are not tru,e then such matter of comment deprives it of the benefits of the legal privilege claimed by the defendant if said privilege otherwise existed; so that the plea of privilege set up by the defendant in its amended answer is no defense to the publication of the said article, unless you find that all the statements therein.are true as a matter of fact.”

The part of the instruction in italics was stricken out by the court, and in lieu thereof the following was substituted:

“But the court instructs you, as a matter of law, that if said article contains matter of unfair comments, derogatory to plaintiff, which are not true, then such matter of comments are not entitled to be regarded by you and is not privileged; so that the pleas of privilege as set up> by the defendant in its amended answer is no defense to the publication of said comments, unless you find them true as a matter of fact.”

As thus modified, the instruction was given by the court, over appellant’s objection.

In order to a better understanding of tbe complaint urged against tbe foregoing instruction as given, it is well to have in mind the issues as made by the pleadings. The alleged libelous publication to which the instruction referred was set forth in extenso in tbe petition, with such other allegations as were necessary in stating the cause of action. One of the defenses of the answer was that the publication “was a reasonably fair and impartial statement and account of testimony given in open court upon the trial in said' court of the divorce suit of Mary Elizabeth Jones against the plaintiff herein. ’ ’ The reply was a general denial of the new matter in the answer. The answer did not justify by pleading the truth of the publication, and the court gave an instruction, at plaintiff’s request, that the truth of the testimony, as stated in the publication, was not in issue and should be treated as untrue. We therefore have before us a cause of action in which the publication is libelous per se; an answer that the publication is a fair report of a judicial proceeding and privileged as such; and a reply denying the new matter in the answer.

In asking the instruction in. the form requested, the theory of the plaintiff evidently was that if part of the publication consisted of unfair comment, then the report was not fair and the privilege was destroyed as to the entire publication. But the instruction, as requested, was clearly outside of the issues, in that the truth or falsity of what is termed comment is submitted as an issue of fact for the jury. It is clear that the court did not err in refusing it.

The instruction, as modified by the court and given to the jury, was still more objectionable, for the modification attempts to separate the publication into two parts, report and comment, leaving what is report under the protection of the privilege, and what is unfair comment under the defense of justification by proving the truth thereof, an issue not found in the pleadings. Under that theory a report might be ever so unfair and the publisher escape liability, provided the part that was unfair could be called comment and proved to be true, and the remainder shown to be a correct report of proceedings in court and therefore privileged. In a condensed report of judicial proceedings it is 'not always clear what is comment and what is report. Neither the. pleadings nor the instructions in this ease suggested any guide to the jury that would enable them to make the distinction. How was the jury to know what part of the publication was comment and what report, so as to apply the defense of truth to the one and privilege to the other ?

In the case of Stiles v. Nokes, 7 East, 506, discussing a libel case, on a state of facts not greatly dissimilar to that in hand, Lord Ellenborough, C. J. said: “The account of the proceedings in court is so interwoven with the comments that we cannot with certainty separate them throughout, although we can see plainly enough that certain parts are an overcharged account of the judicial proceedings. The court cannot decompose this mass; but the party wbo requires the separation to be made for his own defense ought to have taken upon himself the burthen of doing it, in order that the court might see with certainty what parts he meant to justify. I should have great difficulty in saying what parts purport to contain an account of the trial and what parts are libelous. If they cannot be separated by the industry of the pleader, how can they be so by general reference? If they can be so separated, they ought to have been.”

The issue of unfair comment, or the truth of such comment, or whether a part of the publication consisted of comment, was not in the case, nor were such issues recognized in the instructions given at the request of the defendant. In defendant’s instruction numhered 15 the jury was instructed that “the only issue under the, first and second counts of plaintiff’s petition is as to whether the articles published by the defendant on April 28th and 29th were fair reports of proceedings then had and of the contents of depositions then filed in the case of Jones v. Jones,” etc. A corresponding instruction was given as to the third and sixth counts. These instructions and those given by the court as modified are clearly inconsistent and contradictory, and it is obvious that the giving of plaintiff’s instructions, as modified, constituted a misdirection to the jury and was prejudicial error.

IV. Appellant also assigns error in the language of the defendant’s instructions, attempting to define the defense of privilege in the publication of the alleged libel, as a fair report of a judicial proceeding. The text-books and the decisions all agree as to the law upon that subject, so far as it is involved in the point now before us. It is considered of the greatest public importance that the people should be informed of proceedings in their courts of justice, and to that end the rights of private litigants must yield to the extent that such proceeding may be published, without the publisher incurring any liability for the otherwise libelous character of the publication. And as such proceedings may be of too great length and require too much space to publish a verbatim report thereof, the law permits the publication of an abridged report, provided it is fair and reasonably correct.

The word “fair” has a well recognized meaning when thus used to express the character of the report as an abridgment of the full judicial proceeedings. It is used .to characterize the report in the sense that it must be just and impartial as to the party complaining. The report may be inaccurate and yet not be unfair, or it may be both inaccurate and unfair, but not unfair to the plaintiff, and in such cases the defense of privilege would not be forfeited. As to the complainant, while reasonable accuracy is all that is necessary to bring the report within the privilege, reasonable fairness falls far short of what the law requires. If a reasonably fair and correct report would render the report privileged, then there would be no liability if the report was unfair, provided it was not unreasonably so. But the law does not admit of degrees in the quality of the fairness of the report. To come within the protection of the privilege it must be fair and reasonably correct. [Brown v. Globe Printing Co., 213 Mo. 611; Brown v. Knapp, 213 Mo. 655; Boogher v. Knapp, 97 Mo. 122; Folkard on Law of Slander and Libel (7 Ed.), 108; Odgers on Libel and Slander (4 Ed.), 290.]

Defendant’s instruction number 15> after setting forth the law as to the right of the defendant in publishing a report of the proceedings in the divorce case, contains the following direction to the jury:

“If, therefore, you find from the evidence that the articles complained of in the first and second counts of plaintiff’s petition were reasonably fair and correct reports of the proceedings then had and of the testimony contained in eighteen depositions then filed in said cause, then your verdict must be for the defendant. The court further instructs you that, for the purpose of determining the meaning of any particular words, sentences or headlines contained in the said articles you should consider the entire articles taken as a whole and not isolated portions thereof, and the question for you to determine is whether such publications taken as a whole are a .reasonably fair and correct report of the proceedings of the circuit court of the city of St. Louis during the progress of the trial of said cause and of the contents of the depositions which were then filed therein. ’ ’

The words “reasonably fair and correct report,” as used in the part of the instruction above set out, recur throughout defendant’s instructions, in defining the law of privilege. While the latter part of defendant’s instruction numbered 17 correctly declares the law as to the fairness of the report, the first part requires only that it be reasonably fair. The erroneous standard of fairness was used in so many instances, unaccompanied by any corrective explanation, that it cannot be said the jury were not misled by the repeated use of the words “reasonably fair and correct.” Error is presumptively prejudicial, and after having fully considered the subject we are of the opinion that this error in the instructions was prejudicial to the plaintiff in his substantial rights on the merits of the case.

• Other alleged errors are complained of in appellant’s brief, which, on account of the views herein expressed, we do not consider necessary to discuss.

The judgment is reversed and the cause remanded.

Ferriss and Brown, JJ., concur.


author: ROY, C.

text:
    ANNIE RANDOLPH and EDWARD M. RANDOLPH, Appellants, v. ROSA E. ELLIS.
    Division Two,
    February 27, 1912.
    1. QUIETING TITLE: Answer: Prayer for Accounting: Sec. 650, R. S. 1899. In this suit under Sec. 650, R. S. 1899, defendant admits title in plaintiffs but claims under a contract with plaintiffs’ grantor by the terms of which defendant became tenant of the property for a term, paying $7.50 a month rent. The contract provided further that at the end of the term, and on payment of the rent in full, the plaintiffs’ grantor should convey to the defendant. Numerous payments were made. It was conceded that the plaintiffs had notice of defendant’s contract and that she was in possession under that contract. The answer contained an offer to pay the balance due on the contract, and prayed for an accounting and for specific performance. • Held, that the defendant had the right to have her rights under the contract enforced, and, as incidental to that right, it was the duty of the court to take the accounting.
    2. CONTRACTS: Installments: Forfeiture: Waiver. The failure of defendant to pay $7.50 each month did not work a forfeiture of her rights under her contract, even though the contract provided that such failure should render the contract void. Where the other person receives a payment after the forfeiture, the forfeiture is waived. Here the provision for the payment of $7.50 each month was disregarded, and payments were repeatedly made at irregular intervals and of different amounts.
    Appeal from Linn Circuit Court. — Hon. John P. Butler, Judge.
    Affirmed.

      F. H. McCullough for appellants.
    (1) The court had no jurisdiction to take an accounting between the parties in this action and the decree is a nullity. Howard v. Brown, 197 Mo. 36; Seidel v. Cornwell, 166 Mo. 51. (2) This suit was instituted under the statute in relation to quieting land titles and the law does not authorize a decree for the specific performance of a contract in such a proceeding. R. S. 1899, sec. 650. (3) The above cited section was amended in 1909, so that might have a broader application, but under the section as it stood at the time of the trial of this cause the court could only determine the state of the title, and was not authorized to grant any further relief. Charles V. White, 214 Mo. 188; Ball v. Woolfolk, 175 Mo. 278; Powell v. Crow, 204 Mo. 281; Seidel v. Cornwell, 166 Mo. 51; Wilson v. Lubke, 176 Mo. 210. (4) The contract binds the defendant to pay as much as seven dollars and fifty cents each month for the period of eighty-five and one-third months, and further provides “But a failure to pay as much as seven dollars and fifty cents each and every month after March -1, 1901, this contract is null and void.” Unless fraud was practiced to induce a party to sign a contract, the party signing cannot avoid the obligation of the instrument by denying knowledge of its contents or that it expressed the real agreement. Tracy v. Iron Works, 104 Mo. 198; Miller v. E. L. & P. Co., 133 Mo. 220; Crim v. Crim, 162 Mo. 544; Construction Co. v. Tie Co., 185 Mo. 61; Hendricks v. Vivion, 118 Mo. App. 420'.

      A. W. Mullins and B. L. White for respondent.
    The issues in the case were formed by the defendant’s answer and the plaintiffs’ replication thereto. The ease as thus made up was one in equity, and the judgment and decree of the court is within the issues so formed and therefore valid and proper. Dix-son v. Hunter, 204 Mo. 390*; Grraton v. Land and Lumber Co., 189 Mo. 322.
   ROY, C.

This action is under section 650, Re-, vised Statutes 1899, brought in the circuit court of Linn county. The defendant in her answer admits title in the plaintiff Anna Randolph, but claims under a contract with the plaintiff’s grantor, J. B. Schott, dated March 1, 1901, by which it was agreed that she should occupy the premises as tenant of Schott for eighty-five and a third months, paying seven dollars and fifty cents per month rent. The contract provided that at the end of that time, and on payment in full of the rent, Schott was to convey to her, and that a failure to pay seven dollars and fifty cents each month should render the contract void. A note was given for the full amount of the rent, $500', to bear eight per cent interest. Various and numerous payments were made at irregular times and in small amounts, averaging about five or six dollars at a time, from the date of the contract until November, 1907, amounting to $449.50 in all. The contract provides that defendant should pay the taxes, and she did pay them. It was conceded that plaintiffs had notice of defendant’s contract and that she was in possession under that contract. The answer, while not very clear, contained in effect an offer to pay whatever balance might be found due plaintiffs on the contract, and prayed for an accounting and for specific performance. The reply was a general denial.

The court found a balance due plaintiffs of two hundred and fifty dollars, ordered that it he paid within sixty days, and decreed that upon such payment the title should vest in defendant.

The plaintiffs have appealed.

I. The appellant has cited Seidel v. Cornwell, 166 Mo. 51, and Howard v. Brown, 197 Mo. 36, as authority for the proposition that the court had no jurisdiction, under section 650, Revised Statutes 1899; to take the accounting in this case. We are not inclined to that view.

In both those eases the accounting was asked by the plaintiff as an additional relief in connection with the relief, furnished by that section of the statute. That section may control the extent of relief which may he prayed for by the plaintiff; but it certainly does not undertake to circumscribe the defenses which may be made in the cause. Section 005-, Revised Statutes 1899, provides that a counterclaim may he filed connected with the subject-matter of the action, and also provides that defenses and counterclaims may be made whether legal or equitable or both. That section governs proceedings under section 650.

In Griffin v. Nicholas, 224 Mo. l. c. 290, this court, said: “We say this is an equity case, by which we do not wish to be understood as deciding that the statutory proceeding under section 650 is an equity proceeding; on that point we say nothing, but this case, although the petition may have been designed to come under that section, has by the pleadings subsequent to the petition been converted into a suit in equity to set aside a _deed on the grounds of fraud and incapacity to convey and to remove it from the record as a cloud on the plaintiffs’ title.”

In Mann v. Doerr, 222 Mo. l. c. 11, and in Bedford v. Sykes, 168 Mo. 8, it was held that in a proceeding under section 650 the plaintiff cannot get judgment for possession of the land.

Those propositions being established, what do the plaintiffs gain by this suit if they should win it ? They cannot get possession. Their title, subject to the rights of the defendant under her contract, is conceded. If the rights of the defendant under her contract are not adjudicated in this cause the result will be that the whole proceeding will result in nothing. When the suit is over both parties will be just where they were, except for the accumulation of interest and costs.

We have no doubt of the defendant’s right to have her rights under her contract enforced, and that, as incidental to that right, it was the duty of the court to take the accounting.

■ II. Appellant claims that the failure of defendant to pay seven dollars and fifty cents each month was a forfeiture of her rights under her contract.

- In O’Fallon v. Kennerly, 45 Mo. 124, it was held that where the other party received a payment after the forfeiture, the forfeiture was waived.

Here, by the long continued conduct of both parties, the provision for the payment of seven dollars and fifty cents each month was disregarded, and payments were repeatedly made at irregular intervals and of different amounts. The forfeiture was waived and cannot be insisted on here. We therefore affirm the judgment.

Blair, G., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion'of the court.

All concur.


author: FERRISS, P. J.

text:
    MARGARET HERON, Appellant, v. ELLEN M. PEISCH and ELLA SEEBOLD.
    Division Two,
    February 27, 1912.
    1. SPECIFIC PERFORMANCE: Verbal Agreement to Convey Property: Stating Cause of Action: Description. A specific description of the property sought to he impressed with a contract to convey is essential to specific performance. A petition stating that deceased verbally agreed in his lifetime to convey to plaintiff, for services rendered his family, if she would remain with him till his death, one of three pieces of property located on two certain lots, with no separate or individual description of the specific property sought to be impressed with the contract to convey, does not state a cause of action for specific performance.
    2. -: -: -: Ownership. To state a cause of action for specific performance of a verbal contract to convey land, the petition should state that the promisor owned the land at the time the contract was made or some time before his death or that defendants own it now.
    3. -: -: -: Compensation. A claim against the heirs of a deceased promisor to convey land, either for specific performance or for compensation in lieu thereof, can arise only in the event of their becoming possessed through inheritance of property upon which such promisor had impressed a contract to convey to plaintiff. Compensation in lieu of specific performance may in some cases be decreed where the person who is. liable on the verbal promise to convey has disposed of the property to an innocent purchaser, and so made specific performance impossible. But before plaintiff can have compensation his petition must allege that such person had conveyed to others.
    Appeal from St. Louis City Circuit Court. — Hon. W. M. Kinsey, Judge.
    Aekhimed. ’

      L. Frank Qttofy for appellant.
    (1) The court erred in sustaining the defendants’ demurrers because it clearly appears that plaintiff has performed her part of the verbal contract and it was therefore not within the Statute of Frauds and consequently enforceable in equity. Pomeroy’s-Equity Jurisprudence (3 Ed.), sec. 1409; Sharkey v. Mc-Dermott, 91 Mo. 647. (2) And even though the deceased put it out of his power to perform the contract by conveying the land, still plaintiff is entitled to relief, especially where there is no remedy at law, as is the case here, because the estate is closed and settled. Pomeroy’s Equity Jurisprudence (3 Ed.), sec. 1410 ; Lee v. Howe, 27 Mo. 521; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Koch v. Hebei, 32 Mo. App. 103; Hall v. Getman, 121 Mo. App. 630; Hiatt v. Williams, 72 Mo. 214; Healey v. Simpson, 113 Mo. 340; Hall v. Harris, 145 Mo. 614; Fuchs v. Fuchs, 48 Mo. App. 18; Berg v. Moreau, 199 Mo. 416.' (3) Although the deceased did not contract to convey the particular house of the three described in the petition, nevertheless the plaintiff having shown hers'elf entitled to equitable relief, a court of equity will do full and complete justice and either select one of the three houses or in case it has been conveyed by the deceased, award her compensation in damages. It'is a case that appeals to the sound discretion of the chancellor. Holland v. Anderson, 38 Mo. 58; Sharkey v. McDermott, 91 Mo. 657; Kirk v. Middle-brook, 201 Mo. 288.

      Watts, Gentry & Lee for respondents.
    (1) The demurrer was properly sustained, because the petition does not aver that the promisor was at the time the promise was made the owner or had any interest in any one of the three houses in the petition described; or that the promisor at any time ever had any title to, or interest in, any one of said three houses; or that either of the defendants is in the possession of, o,r claiming title to, any one of said three houses. (2) Because the promise recited in the petition and relied upon was not a promise to convey any specific thing. Shelton v. Church’s Admrs., 10 Mo. 774; Ferriss v. Irving, 28 Cal. 645; Hamilton v. Mc-Eldowney, 46 Pa. St. 334.
   FERRISS, P. J.

Appeal from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to the following petition:

“Plaintiff, for her first amended petition, states that the defendants are the sole heirs and devisees of one George Peisch, deceased, who departed this life on the 15th day of April, 1905, in the city of St. Louis, Missouri.
“Plaintiff, for cause of action, further states that at the age of seven o.r eight years she became a member of the family of the said George Peisch, deceased; that although not related to him by blood, she rendered to the said George Peisch'and his family the obedience and affection of a daughter, and continued to live with him, with the exception of brief intervals when visiting her own relatives, for a period of about thirty-four years, and until the death of the said George Peisch as aforesaid; that during said time the plaintiff performed services of great value to said Peisch as a member of his household and family; that she did housework, cooking, mending, sewing, nursing and all kinds of services such as are customarily rendered by members of a family to others composing the same; that she collected rents, kept books and performed services of every kind and description required of her by said George Peisch during said period; that on or about the — day of February, 1904, the plaintiff expressed a desire to leave the home and family of the said George Peisch and to take up her abode with her brother, then residing in the city of Memphis, Tennessee, in order to keep house and establish a home for her said brother; that in furtherance of said desire of plaintiff she proceeded to the city of Memphis at said time, but upon the urgent solicitation and request of said George Peisch she returned to the city of St. Louis to again take up her abode and become a member of his family; that in order to insure the sojourn of plaintiff with said George Peisch until his death, the said Peisch, upon her return as aforesaid, entered into a verbal contract with plaintiff that if she would remain with him and in his family until his death he would give to the plaintiff one of three two-story brick houses situated upon the following described real estate in the city of St. Louis, State of Missouri, to-wit: Lots 27 and 28 of Lafayette Park addition, in block 483 west, in the city of St. Louis, fronting 50 feet on the east line of Eighteenth street, by a depth eastwardly of 128 feet, more or less, to an alley; that the said three houses are numbered 1204, 1204% and 1206 South Eighteenth street, in said city, and together occupy the said lots of ground, each of said houses being situated on one-third of said two lots, and being of equal value, to-wit, the sum of twenty-five hundred dollars; that plaintiff faithfully performed her agreement to continue to abide with said Peisch until his death, and performed all the service required of her of said Peisch to his entire satisfaction, but plaintiff says that the said Peisch, disregarding his obligation to the plaintiff, and in violation of the terms of his contract as aforesaid, failed upon his death to convey to her one of the said three houses, and that she has received nothing for her services; that the estate of said George Peisch, deceased, has been fully closed and settled, the defendants being the sole heirs and distributees, and that she has no adequate remedy at law to enforce the terms of said verbal contract, or otherwise.
“Plaintiff further says that the said George Peisch, upon his death, devised to these defendants all of his estate, of great value, to-wit, about the sum of $106,000, and that they are now in possession thereof.
“Wherefore, by reason of the premises, plaintiff prays for a decree vesting in her the title to one of the said three houses, agreeable to the terms of the said verbal contract of said deceased, and for such other and further relief as to the court may seem meet and proper. ’ ’

The plaintiff proceeds upon the theory that she is entitled to specific performance, or, if this cannot be had, then to compensation in damages.

The demurrer admits the truth of the facts pleaded. Do these facts establish a basis for specific performance as against these defendants? We think not. There is no description of the specific property sought to be impressed with the contract to convey.. Such description is essential to specific performance. The specific property must be alleged and proven. [Sutton v. Hayden, 62 Mo. l. c. 115.] Nor is it alleged that the deceased, George P'eisch, owned at the time the contract was made, or at any time before his death, the property mentioned in the petition-, nor that the defendants, or either of them, had at any time any title to or interest in such property, namely, the three houses mentioned in the petition.

Compensation in lieu of specific performance may in some cases be decreed where the person who is liable on the verbal promise has disposed of the property to an innocent purchaser, and so made specific performance impossible. No such case is stated here against these defendants; hence, the cases cited by plaintiff upon this proposition do not apply. A claim against these defendants, either for specific performance or for compensation in lieu thereof, could arise only in the event of their becoming possessed through inheritance of property upon which their ancestor had impressed a contract to convey to plaintiff.

The cases cited by plaintiff are cases where the specific property is alleged,and proven; and in those cases where the property is followed into the hands of grantees from the contracting party, snch grantees took with knowledge of the contract, the-part performance and all the rights of the promisee, and were held to have taken in fraud of such rights. [Gupton v. Gupton, 47 Mo. 37; Lee v. Howe, 27 Mo. 521.]

As the petition states no case against these defendants, the judgment is affirmed.

Kennish and Brown, JJ., concur.