author: WHITE C.

text:
    JOHN STROTHER v. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, Appellant.
    Division Two,
    April 26, 1918.
    1. CONSTITUTIONAL QUESTION: Timely Raised: Opportunities. A constitutional question should he lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circumstances of a given case. The rule is not to be so strictly construed as to be applied at every moment in the progress of a case, hut, as to a defendant, there are three general stages, naturally separted from each other by orderly procedure, when the opportunity arises: first, in the pleadings; second, in the progress of the trial, when a ruling is demanded upon the admission or exclusion of evidence or the giving of instructions; and, third, in the motion for a new trial.
    2. —^-: Action Based on Statute: Untimely Raised: Appellate Jurisdiction. Where the cause of action was planted squarely upon the statutes of another State, which were pleaded verbatim, as any other fact to be proved in making out plaintiff’s case, the attention of defendant to their constitutionality was challenged from the start, and their validity could have been raised either by demurrer or motion to strike out or answer, and if not raised by the one of thése methods that was appropriate to the petition, but defendant waited until the statutes were offered in evidence and then for the first time raised the question that they were violative of the Constitution of the United States, the challenge came too late, and the constitutional question, in so far as being determinative of appellate jurisdiction, dropped out of the case.
    3. -7-: When Statute Gives Cause of Action: Raised at Any Time. The rule announced in McGrew v. Railroad, 230 Mo. 496, that where plaintiff’s cause of action is based “upon a statute, the constitutionality and life of the statute are involved from start to finish” and the question of its validity may be raised at any stage of the proceeding, in either the trial or appellate court, cannot be so applied as to confer appellate jurisdiction on the Supreme Court on the sole ground that the petition fails to state a cause of action in that it is based on an unconstitutional statute. If the statute furnishes the cause of action and the petition pleads its violation as the ground of plaintiff’s right to recover, the constitutional invalidity of that statute must be timely raised by defendant in the trial court, or it has not been so raised as to give the Supreme Court jurisdiction of the appeal on the sole ground that a constitutional question is involved.

      4. OBITER. A statement or the announcement of a rule in an opinion is not oMter if it applies directly and distinctly to the facts of the case.
    Appeal from Jackson Circuit Court. — Hon. Frank G. Johnson, Judge.
    TRANSFERRED TO KANSAS ClTY COURT OF APPEALS.

      Thomas B. Morrow, George J. Mersereau, John H. Lathrop and J. D. M. Hamilton for appellant.
    (1) The defendant having a perfect and complete defense under the laws of the State of Kansas, such defense is a vested property right and defendant cannot he deprived thereof by any court or other instrumentality of the State of Missouri without violating the Constitutions of the United States and of the State of Missouri, (a) The constitutional questions were properly and timely preserved and presented to. the trial court. Miller v. Connor, 250 Mo. 677; Canton v. McDaniel, 188 Mo. 207; Moliter v. Railroad, 180 Mo. App. 84; Ingwerson v. Railroad, 205 Mo. 328 ; Keele v. Railway, 258 Mo. 62. (b) A substantial constitutional question exists. Pritchard v. Norton, 106 U. S. 124; Leete v. Bank, 141 Mo. 574; Railway v. Reed, 158 Ind. 87; Bank v. City, 94 Minn. 246; Paving Co. v. Ridge, 169 Mo. 376; Lewis v. Railway, 220 Pa. St. 317; Hovey v. Elliott, 167 U. S. 409; Suess v. Ins. Co., 193 Mo. 564. (c) The constitutional prohibitions invoked refer to all the instrumentalities of the State, the legislative, executive and judicial authorities, and the violations of the Constitution are none the less such because produced by judicial .authority. Paving Co. v. Ridge, 169 Mo. 376; Suess v. Ins. Co., 193 Mo. 564; Railroad Co. v. Chicago, 166 U. S. 226; Scott v. McNeill, 154 U. S. 34; Virginia v. Reeves, 100 U. S. 313; Ex parte v. Virginia, 100 U. S. 339; Neal v. Taylor, 103 U. S. 370. (2) The error of the court in admitting in evidence over the objection of the- defendant Sections 7116 and 7117 of the General Statutes'of Kansas 1909, is further a basis for the jurisdiction of this court. Dreyer v. -People, 58 N. E. (Ill.) 620; Downey v. Railway, 125 N. V. (M D.) 475, 26 L. R. A. 1017.

      Beardsley & Beardsley for respondent.
    (1) This court has no jurisdiction of this appeal as no constitutional question is involved. McDonald v. R. & N. Co., 233 U. S. 665 ; Castillo v. McConnico, 168 U. S. 674. (2) The statutes of the State of Kansas determining the rate of speed at which live stock must move in intrastate shipments in that State are entirely valid and properly admitted in evidence. Railroad v. Cram, 228 U. S. 70; Railroad v. Kyle, 228' U. S. 85. ■
   WHITE C.

The plaintiff recovered judgment in the sum of $1600 for the loss of his stallion which died while being shipped over the defendant’s railroad, and the defendant appealed. The respondent challenges the jurisdiction of this court, and jurisdiction can be retained only if a constitutional question was properly and timely raised by the defendant in the trial court.

Plaintiff alleges that on the first day of March, 1912, he delivered to the defendant a stallion of which he was the owner, to be carried by the defendant from Abilene, Kansas, to Kiowa, Kansas.

The cause of action is based on Section 7116 and 7117 of the General Statutes of Kansas for 19091, and those sections are set out verbatim in the petition.

Section 7116 provides that all common carriers shall transport livestock received for transportation without delay at a rate of speed not less than an average of fifteen miles an hour, unless prevented by unavoidable accident.

Section 7117 provides that if the carrier refuses or fails to transport livestock at a rate of not less than fifteen miles an hour it shall be liable,for all damages sustained by any person on that account, and all other damages which are the approximate result of such failure, together with the cost of a suit if one is brought, and a reasonable attorney fee fixed by the court.

The petition then alleges that the defendant, in the shipment of said stallion, failed to comply with the provisions of said Sections 7116 .and 7117 of the General Statutes of Kansas, and such failure was not due to unavoidable accident; that because of the unreasonable length of time lost in removing the said stallion from Abilene, Kansas, to Kiowa, Kansas, the said stallion contracted pneumonia and died soon after reaching Kiowa, Kansas; that said death was due to the carelessness and negligence of the defendant, its employees and agents, in failing to move the said car' from Abilene, Kansas, to Kiowa, Kansas, “within the time prescribed by the statute hereinbefore pleaded.”

The petition does not allege any damage accrued to plaintiff by any failure to receive the horse promptly for shipment. Although the allegation is that it was first shipped from Beloit, Kansas, to Abilene, where there was unreasonable delay, it is alleged that the stallion was in perfect health at the time of its delivery to defendant at Abilene. The only act of negligence alleged was the failure of the defendant to transport the shipment after receiving it within the time prescribed by the statute.

The answer of the defendant sets up that at the time of the alleged offer of the said stallion for transportation from Abilene, Kansas, to Kiowa, Kansas, the defendant could not accept it for shipment for the reason that from the second day of March until the fourth day of March, 1912, it was impossible to move its freight trains on account of an unusual and unprecedented snow blockade existing upon its line between Abilene, Kansas, and Kiowa, Kansas, and that as soon as its said line was open for traffic it did accept and transport the said stallion from Abilene to Kiowa. The answer then alleges that, under the laws of the State of Kansas, the order or ordinanoe of the Kansas Board of Railroad Commissioners, the published tariff rates of the defendant and the shipping contract, the value of the horse was limited to one hundred dollars.

The answer further says if there was any delay in the transportation, said delay was due entirely to unprecedented conditions; and “that this defendant is not liable for such delay by reason of the provision as contained in Section 71.16 of the State of Kansas as quoted on page 2 of defendant’s amended petition.”

The answer is of great length and not only recognizes the statute upon which the suit is brought, but pleads facts which would avoid the effect of the statute. It is a confession and an avoidance.

The plaintiff in reply set up' other statutes of Kansas and decisions of that State construing the various statutes.

The case proceeded to trial and plaintiff testified to the facts relating to the shipment and death of the horse as alleged in the petition, and defendant in cross-examination offered the shipping contract and produced a witness to show the rules of the Kansas Public Utilities Commission. The plaintiff produced several witnesses relating to the negligence of the defendant. The plaintiff then offered the statute of Kansas, Sections 7116 and 7117. At that point the defendant objected to the introduction of these sections of the Kansas Statutes on the ground that they are in violation of the Fourteenth Amendment to the Constitution of the United States.

At the close of the evidence instructions also were offered to the effect that these sections-of the statute were unconstitutional.

I. In order to give this court jurisdiction of a case on the ground that a constitutional question arises in the case, “the constitutional question should be lodged in the case at the earliest moment that good plG&cLiii££ <nid orciGrly proCGCLU-CG Will ¡ÜQ.H1ÍL under the circumstances of the given case.” This rule has been repeated time and again until it should be considered no longer a matter of debate. The cases have been fairly consistent with slight differences in the application of the rule to the records presented. The earliest moment that good pleading and orderly procedure will admit may occur at almost any stage of the proceeding, from the filing of the answer to the filing of the motion for a new trial. Without construing this rule so strictly as to apply it to every moment of time in the progress of the case, it is obvious that there are three general stages in a proceeding, separated from each other in the very nature of the case by the regular steps of an orderly proceeding, during which questions of that character may be raised.

First: Opportunity might be presented to raise■ it in the pleadings, when the trial court could have time and deliberation to consider so important a question before the hurry and stress of the actual trial begins.

Second:’ It might arise for the first time in the progress of a trial, when a ruling of the court is demanded upon the introduction or exclusion of evidence, .or the giving of instructions to the jury; or,

Third: It might occur after trial, when a motion for new trial is filed and presents the first opportunity.

The question here is, could the constitutional question have been raised by the pleadings, and if so was it too late to wait until the trial was in progress and then raise it for the first time on objection to the evidence?

The expressions of some of the numerous cases upon this point ought to settle, it. The case of Loh-meyer v. Cordage Co., 214 Mo. 685, treated the subject at some length and that case has been quoted in many subsequent cases. The court there characterizes the practice of waiting until late to raise a constitutional question in these words (p. 688):

“Whatever the-use of an ambush in war, or games of chance, its use does not commend itself to jurisprudence. ’ ’

And on page 6891:

“A constitutional question might possibly obtrude itself at the trial regardless of the pleadings through some unanticipated ruling on the introduction of testimony.”

And on pages 689 and 690:

“It must he taken as settled law that in so grave a matter as a constitutional question it should be lodged in the case at the earliest moment that good pleading and orderly procedure will admit under the circum-stnces of the given case.”

And further:

“If plaintiff grounds his right of action on a statute which defendant contends is unconstitutional it should be put in the answer and kept alive. ’ ’

The case of Ash v. City of Independence, 169 Mo. 77, said at page 79:

“When, as in this case, the party seeking its protection was advised, at tfie time of filing its answer, of the statute which it asserts is unconstitutional, and that the rights of the opposite party would be predicated on such statute; it is his, or its, plain duty to plead the unconstitutionality of the statute and point out the specific provisions of the Federal or State Constitution or of both (if such is the case), which it will insist is infringed by such statute, or if the question arises for the first time during the trial by reason of a construction put upon a statute or proceeding by the trial 'court, the objection that such construction would violate a constitutional right . . . must be preserved on the record.”

That case, after an appeal to the Kansas City Court of Appeals, had been remanded, and an amended answer was filed in which the constitutional question was raised, and it was held too late. ,

In Miller v. Connor, 250 Mo. 677, the court said l. c. 684: “So, a constitutional question must he raised timely in the course of orderly procedure. Accordingly it should he raised in the pleadings if due to he found there.”

In the case of .George v. Railroad, 249 Mo. l. c. 199, the court says:

“Now in this case it is conceded that the vital count of plaintiff’s petition was based upon our statutes. With such concession it became the duty of the railway company to raise the question of unconstitutionality in the answer. This was not done.”

In Deiner v. Sutermeister, 266 Mo. l. c. 514, in an action based upon the statute the court held that because its constitutionality was not raised until after the trial it could not be considered, and said:

“No reason is urged, or known to exist, why such allegation was not lodged in the answer of defendants. They recognized that this statute was being invoked by plaintiff, because, more than a year before the trial, they filed a motion to strike from plaintiff’s petition the parts thereof which were bottomed upon this statute. Our practice is settled that ordinarily a constitu--tional question must be lodged in a case as soon as is procedurally possible after the statute, order, judgment, matter or thing alleged to he unconstitutional, appears in the case.”

In the case of Dubowsky v. Binggeli, 258 Mo. 197, l. c. 202, the court said of the constitutional question: “That defense could have been raised by demurrer or answer, and as it was not raised until the motion in arrest* was filed, such issue was presented out of time and must be disregarded.”

Dudley v. Railroad, 238 Mo. 184, is directly in point on the facts. It was' an action brought by an infant who sued by her next friend. It was claimed that the statute authorizing the clerk to appoint the next friend was unconstitutional. The court said, 1. c. 185: “At the September term, 1909, defendant filed its answer, but said nothing about the Constitution or the statute. ’ ’ Then at the subsequent term on the trial of the cause after the evidence was in, the defendant asked leave to file an amended answer to conform to the proof, and in that amended answer for the first time challenged the validity of the statute. The court then said (p. 186): “Defendant knew it as well when it filed its first answer as it did after the close of the evidence.” And further (p. 186)-: “This court has always held that when a constitutional question is relied on to give it jurisdiction the question should be raised in the trial court at the first opportunity presented. If it is not raised at the first opportunity it cannot he raised afterwards, although attempted in many forms.” And further (p. 187): “It should have been presented in the first- answer filed by defendant, and if it had been so presented the issue so tendered would have been tried by the court before the issues on the merits.”

The case of Hanks v. Hanks, 218 Mo. 670, was an action for divorce. The defendant pleaded a judgment and decree rendered in the State of Iowa. The plaintiff then in reply alleged as unconstitutional a statute in Missouri as applied to judgments of the character pleaded in the answer. The court says, p. 675: “Be this as it may, we are firmly of the opinion that a constitutional question not only, may, but should, appear in the reply, when that is the first time and place for it to be lodged, and that such a question is sufficiently lodged in the pleadings in this case to give this court jurisdiction. ’ ’

In Milling Co. v. Blake, 242 Mo. 23, the court, after quoting from the Lohmeyer case the passage to the effect that the constitutional question should be lodged in the case at the earliest moment, says (p. 32): “Vandiver’s answer to the interrogatories pleaded the statute. Plaintiff filed a written denial of that answer in order to make up the issue. That denial does not challenge the constitutionality of the law.” The court then holds that raising the question for the first time in a motion for new trial is too late.

The cause of action in the case at bar is planted squarely upon the statutes of Kansas. These statutes are pleaded as any other fact to he proved in making out plaintiff’s case. They challenged the attention of defendant from the start. The answer admits the statutes and pleads avoidance of them by pleading facts which would excuse the defendant from complying with them. If the petition counted alone upon the statute, the question could have been raised by demurrer or answer. If the petition had sufficient allegations to also state at cause of action at common law, which it had not, the question could have been raised by answer or by motion to strike out. Then was the time and opportunity for defendant to present its constitutional question, so that it might be considered with care by opposing counsel and determined with deliberation by the court. But the defendant waited until the trial was in progress and the statute was offered in evidence, and then for the first time raised the question. It was too late.

II. It is said that objection may be made to the sufficiency of a petition, where it does not state a cause of action, at any time. The case of McGrew v. Railroad, 230 Mo. 496, is cited. The opinion case says that where plaintiff’s canse of action is based “upon a statute, the constitutionality and life of the statute are involved from the start to the finish. . . . Defendant has the right to object for the first time in the appellate court that the petition does not state a cause of action, and it matters not what the ground 'of objection may be, provided only that it be good and sufficient in law.”

And that was applied by the court to a cause of action founded upon an unconstitutional statute. That case, with others, has stated that rule following several Federal decisions, but it will be noted that the question of the jurisdiction of this court on the ground that the statute upon which the suit was based was uncoil-stitutional, was not under consideration. The opinion assumed that this court had jurisdiction. No other 'case, in this State, so far as we are able to find, has decided that the sufficiency of the petition may he challenged on the ground that the suit is based upon an unconstitutional statute for the first time in the Supreme Court, so as to confer jurisdiction. The same proposition in a slightly different form is stated when it is said that: “Where a,.constitutional question is necessarily involved so that such case cannot he decided at all without deciding that point, then the question need not be expressly raised in the trial court.” And, “Where a suit is based on a statute the constitutionality of the statute is involved from start to finish whether such question is expressly raised or not.”

If that proposition were applied to the principle we are discussing here and in cases like this, then it would abrogate more than one rule which has been’laid down by this court to determine when it has jurisdiction on account of a constitutional question. It is directly contradictory to the rule that it must be raised at the earliest possible time orderly procedure will admit, and likewise to the rule that the constitutional question is not raised unless the particular and specific section of-the Constitution is pointed out in the trial court. If that proposition were given general application every action based upon a statute would present a constitutional question which might be raised for the first time on appeal. The proposition, as so applied, is at variance with the rulings of this court in the following cases: State v. Cook, 217 Mo. 326; George v. Railroad, 249 Mo. 197; State ex rel. v. Tibbe Elec. Co., 250 Mo. 522; Miller v. Connor, 250 Mo. 677; Lohmeyer v. Cordage Co., 214 Mo. 685; Deiner v. Sutermeister, 266 Mo. 505 ; State v. Swift & Co., 270 Mo. 694.

A brief notice of the facts in some of these cases will show their incompatibility with the propositions stated:

The case of Deiner v. Sutermeister, 266 Mo. 505, was a suit for personal injuries by a servant against Ills employer; injuries alleged to Lave been received by reason of tlie master’s negligence. The specific acts of negligence in the.petition were three: (a) common law negligence; (b) a failure to comply with Section 7843, Revised Statutes 1909; and, (c) a violation of an ordinance of Kansas City. Defendants moved to strike out the petition; on the motion being overruled, they filed an answer setting up a number of defenses. In neither the motion nor the answer was the constitutionality of this section mentioned, and the court held that the question could not be raised in the motion for arrest, and was not before this court for consideration. There, according to the contention made, the cause of action was to an extent based on the statute, and the constitutionality of this statute was “in the case all the time. ’ ’

In the case of State v. Swift & Co., 270 Mo. 694, the defendant was found guilty of violating Section 651, Revised Statutes 1909. The constitutionality of that section of the statute was not properly raised in the trial court. This court held that it might have been raised by demurrer, but was not so raised, and this court could not take jurisdiction of the case. In that case the'statute was “involved from start to finish,” a challenge from the beginning to the end of the case, in the assumption that it was a valid statute and authorized conviction, and the court could not decide the case without holding or assuming the statute to be constitutional.

The Lohmeyer case, 214 Mo. 685,'was an action for personal injuries by a servant against the master, based squarely on the Factory Act, Section 6433, Revised Statutes 1899. That statute was involved “from start to finish,” and that was the case oft quoted from where it was held the constitutional question had to b.e raised timely and specifically.

The case of State ex rel. v. Tibbe Elec. Co., 250 Mo. 522, was based solely upon certain sections of the statute, which sections are pointed out in a demurrer to the petition. The demurrer states that the section of the statute is unconstitutional, but fails to specifically point out the section of the Constitution which is violated. The court held that the constitutional question was not raised. These sections of the statute were in the case “from start to finish,” and if the petition could be challenged on the ground that it did not state a cause of action because based on unconstitutional statutes, at any stage of the proceeding, in the appellate court as well as elsewhere, then this court would have retained jurisdiction.

The case of George v. Railroad, 249 Mo. 197, is an action for personal injuries based upon certain sections of the statute. These sections of' the statute were in this case “from start to finish.” It was held that because the constitutional question was not raised in the usual course of procedure in the trial court this court would not assume jurisdiction.

In the case of State v. Cook, 217 Mo. 326, the defendant was found guilty of violating a statute and appealed to this court. That statute and its validity were in the case from start to finish. The constitutionality of the statute was challenged for the first time in the motion for a new trial and the court held that it was not raised.

The above are only a few of the many cases which might be cited showing the uniform practice of this court where an action was based upon a statute and where the validity of that statute was before the court “from start to finish.” In each of them the constitu-, tionality of a statute was challenged and unless the statute was constitutional no cause of action was stated. This court did not assume jurisdiction in any of them unless the question was timely and properly raised as indicated.

A constitutional question might obtrude itself upon the judicial notice with such insistent demand for recognition that consideration of it could not be escaped. But that is not this case. This court refused to entertain such demand when presented in the recent case of State ex rel. Columbia Telephone Co. v. Public Service Commission, 195 S. W. 741, and in the more recent case of City of Lancaster v. Wes Reed, 201 S. W. 95. The doctrine of the McGrew case cannot he applied where the question of jurisdiction is involved.

III. It is suggested that the statement in the several cases where the' courts say the question must be raised at the earliest possible moment, and in the an-obiter swer ^ practicable, is obiter because in most of those cases the question was not raised until after judgment. The statement is not obiter if it is applied to the facts. If the constitutional question could be raised in the pleading, and is raised for the first time in the motion for new trial, and the court says that it ought to have been raised at the earliest moment practicable in the orderly procedure and conduct of the cáse, and that time was when the opportunity was presented in filing the answer, then that statement is not obiter, but it applies directly and distinctly to the facts in that case.

The case should he transferred to the Kansas City Court of Appeals. It is so ordered.

Roy, C., dissents.

PER CURIAM. — The foregoing opinion by White, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    RUTH McGINNIS v. THOMAS McGINNIS, Appellant.
    Division Two,
    April 26, 1918.
    1. ASSIGNMENT: Cause of Action, An action for an accounting by one partner against tbe other is assignable. The cause of action would have survived and passed.to the personal representative of the partner assigning it had he not assigned it, and that is the test of assignability of causes of action.
    2. PARTNERSHIP AGREEMENT: Statute of Frauds: Full Performance. "Whether or not an oral agreement to lease and sublease real estate, entered into between two partners, by the terms of which all profits realized should be divided between them in the proportion of forty per cent to one and sixty to the other, was within the Statute of Frauds, is of no moment • in the suit by one partner’s assignee for an accounting, if it has been fully performed.
    3. RECEIPT: Accounting. A receipt, given by one partner to another, in which he acknowledges settlement in full to date, may be shown to be a mistake. If he had no actual knowledge of the matter, and signed it upon the erroneous statement of the other that the amount stated in it was the full amount due him, and the .other did have correct knowledge and promised to send later a detailed statement to verify his erroneous claim, neither the signer of the receipt nor his assignee is bound, in the suit for an accounting, by the receipt.
    4. ACCOUNTING: Unexplained Items: Burden. The burden is on the partner who received all the money and had charge of the business to explain and establish the justness of unusual items of expense shown by a statement furnished by him in response to the court’s requirement.
    5. AMENDED BLEADING: Refusal: Accounting: After Referee’s Report. The court does not abuse its discretion in refusing to permit defendant to file an amended answer which materially changes the whole aspect of the case and brings in a defense known from the start, after the case is practically concluded. Where in a suit for an accounting brought by the assignee of one partner against the other, for the agreed percentage of the profits arising from the leasing and subletting of real estate, the defendant filed an answer pleading (1) that there never was any agreement between him and said assignor concerning the transactions mentioned and (2) that he had settled with said assignor for all claims he had or might have against him, the court did not abuse its discretion in refusing to permit defendant, after the matter had been referred to a referee and after the referee had heard the evidence and made his report, to file an amended answer in which he pleaded that the parties did enter into the agreement, but that it was illegal and unlawful because it was the purpose and intention of the parties to use the property for illegal and immoral purposes.
    Appeal from St, Louis City Circuit Court. — -Now. Karl Kimmel, Judge.
    Affirmed.

      Kali & Dame and Won. E. O’Brien for appellant.
    (1) Plaintiff acquired no riglit under the alleged assignment from Louis A. McGinnis to maintain an action against Thomas McGinnis for accounting of profits from a joint adventure of Louis A. McGinnis and Thomas McGinnis. Such right was not assignable. 1 Ency. PL & Pr. 99; 1 R. C. L., 225 ; Daunes v. Worch, 28 R. I. 99, 13 Ann. Gas. 647 ; 4 Cyc. 22, 103; Whittle y. Skinner, 23 Vt. 531; Jones v. Babcock, 15 Mo. App. 149; C. & A. R. Co. v. Maher, 91 Ill. 312; Landin v. McCarthy, 45 Mo. 106'. (2) The alleged contract which plaintiff sought to enforce is within the Statute of' Frauds and being wholly oral is not enforceable, (a) The contract was not to be performed within one year. Riegert v. Coal & .Coke Co., 217 Mo. 142. (b) It is a contract for interest in real property. Sec. 2783, R. S. 1909 ; Tapley v. Ogle, 162 Mo. 190; Allen v. Richard, 83 Mo. 55; Clawater v. Tetherow, 27 Mo. 241; Taylor v. Von Schrader, 107 Mo. 206. (3) Defendant’s demurrer at close of plaintiff’s case should have been sustained also for the reason that at the trial plaintiff failed to show that anything was due plaintiff or her assignor or that defendant had received any profit from the adventure in question. Simmons v. Oil Co., 71 N. J. Eq. 174; State v. Denton, 229 Mo. 187. (4) Complete settlement of any claim which Louis A. McGinnis may have had was made by the receipt settlement of November 4, 1908. 17 Cyc. 633 ; 0'’Shea v. Lehr, 182 Mo. App. 676; Helling v. N. O. of H., 29 Mo. App. 300; Tanner v. Merrill, 108 Mich. 58, 31 L. R. A. 171; Perkins v. Headley, 49 Mo. App. 556. (b) The decree for accounting is erroneous in failing to give the proper and legal effect to the release receipt executed by Louis A. Mc-Ginnis on November 4, 1907. The release receipt at least was a settlement of all claims up to its date. Authorities above. (5) The court erred in approving the referee’s report, (a) Because the referee failed to allow items in favor of defendant, proven by un-controverted testimony, to-wit: expenses for sub-agent, and for repairs, itemized in defendant’s statement as “vouchers” and “x x.” (b) Because the referee refused to accept the statement of accoiint filed by defendant as a whole, but received in evidence only the parts favorable to plaintiff. Corpus Juris, 639; 17 Cyc. 464; Mulloy v. Mulloy, 131 Mo. App. 659; Todd v. Terry,. 26 Mo. App. 598. (c) The referee excluded competent testimony offered by defendant which if admitted would have disclosed the illegility of the contract and transaction. Authorities under next point. (6) Defendant should have been allowed to file his amended answer setting up the illegality of the contract and transaction forming the basis of the suit, and the whole action should have been, and should be, dismissed because tainted with illegality. Aslibrock v. Roselle Dale, 27 Mo. App. 649; Grivens v. Yan Studdiford, 86- Mo. 156; Sprague v. Rooney, 104 Mo. 349; Ullman v. Fair Assn., 167 Mo. 273; Fair Assn. v. Carmody, 151 Mo. 573; Morrison v. Judin, 145 Mo. 282; Hagerty v. Ice Co., 143 Mo. 238; Davis et al. v. Tandy, 107 Mo. App. 437; Banking Co. v. Loomis, 1401 Mo. App. 62; McDermott v. Sedgwick, 140 Mo. 172.

      Kineaiy & Kineaiy for respondent.
    (1) Any right growing out of contract or which is descendable may be assigned. 5 C. J. 850 ; 4 Cyc. 23; Remmers v. Remmers, 217 Mo. 54; Sanguinet v. Webster, 153 Mo. 343; Chouteau v. Broughton, 100 Mo. 406; Steele v. Braxier, 139 Mo. App. 319; State v. Heckart, 49 Mo. App. 280. (2) The Statute of Frauds has no bearing on this case because: (a) The agreement has been fully performed. Welch v. Mann, 193 Mo. 304; ' Maupin v. Railway, 171 Mo. 187; Bank v. Read, 131 Mo. 553; Bless v. Jenkins, 129 Mo. 647; Ordelheide v. Traube, 183 Mo. App. 363; Sloan v. Paramore, 181 Mo. App. 611. (b) There was no understanding that the agreement should not be carried out within a year. Keller v. Mayer, F. Co., 153 Mo. App. 120; May v. Moore, 99 Mo. App. 27; Wyma v. Followill, 98 Mo. App. 463; Biest v. Yersteeg Shoe Co., 97 Mo. App. 137; Harrington v. Railway, 60 Mo. App. 223. (3) To require a trustee to account it is not necessary to prove that the accounting will show something due. Nothing but the accounting may be able to do that. Broussard v. Mason, 187 Mo. App. 281. (4) A receipt in full has no contractual elements and is subject to explanation. Sawyer v. Walker, 204 Mo. 133 ; Anil v. St. Louis Trust Co., 149 Mo. 1; Cole Co. y. Dallmeyer, 100; Mo. 57; Edwards v. Smith, 63 Mo. 119; Weatherford v. Farrar, 18 Mo. 474. (5) Partners stand in a fiduciary relation and owe the utmost good faith to each other. 22 Am. & '■Eng. Ency: Law (2 Ed.), 114; Pomeroy v. Benton, 57 Mo. 531; Filbum y. Iyers, 92 Mo. 388. (6) It is the duty of a trustee to keep clear and accurate accounts and if he does not, all doubts and obscurities are to be taken adversely to him. 2 Perry on Trusts, sec. 821; 39 Cyc. 464; 30 Cyc. 742; Hoke v. Coach, 114 Mich. 558; Cockerham v. Bosley, 52 La. Ann. 65. (7) When a trustee is called upon to account, the burden is on him to prove the credits he claims. 1 Cyc. 448; 1 C. J. 651; 2 Am. & Eng. Ency. Law (2 Ed.), 1126; Campbell v. Coquard, 93 Mo. 474; Kirchner v. Kirchner, 113 Mo. 290; State ex rel. v. Jones, 131 Mo. 194; Thatcher v. Hayes, 54 Mich. 184; Eailroad v. Sittel, 21 Okla. 695; Dettering y. Norstrom, 148 Fed. 181. (8) Defendant • as trustee in charge of the property was entitled to credit only for such sums as were necessarily paid out by him in the usual and ordinary management of the property. 2 Perry on Trusts, sec. 910; 28 Am. & Eng. Ency. Law, p. 1089; Tracy v. Eailroad, 13 Mo. App. 295; Inglis v. Floyd, 33 Mo. App. 565; Condict v. Flower, 47 Mo. App. 514; Veltum v. Koehler, 85 Minn. 125. (9) After the interlocutory decree had been entered and the accounting had, it was too late for defendant to file an amended answer setting up a new defense to .the right of plaintiff to demand an accounting: Carter v. Dilley, 167 Mo. 564; G-ale v. Foss, 47 Mo. 276; Laughlin v. Leigh, 226 Mo. 620; Weed Co. v. Philbrick, 70; Mo. 646. Moreover the alleged new defense was not good in law. 9 Cyc. 559; Hatch v.. Hamson, 46 Mo. App. 323.
   WILLIAMS, J.

This is an action for an accounting, brought by plaintiff as the assignee of one partner, against the other partner who is alleged to have received the net profits from the partnership business. Trial was had in the circuit court of the city of St. Louis, which resulted in a judgment in fa,vor of plaintiff in the sum of $13,434.95. Thereupon defendant duly appealed to this court.

The petition alleges:

1. That on September 1, 1906, one Louis A. Mc-Ginnis (the father and assignor of the plaintiff) and the defendant entered into an agreement to the effect that they should enter into the business of leasing rental property in the city of Chicago, which was suitable for subleasing and which could be leased by them upon terms which would yield to them a profit when sublet, and that all profits so realized should be divided between them in the proportion of forty per cent to said Louis A. MqGinnis and sixty per cent to defendant.

2. That in pursuance of said agreement they procured leases on the 0 (Malley premises known as Nos. 101 to 113 West Twenty-First Street and on the property known as the Shaughnessy property at 2112 Armour Avenue, both in the city of Chicago, State of Illinois; that said leases were taken in the name of third parties; that in procuring the O’Malley lease the partners were required to deposit as security the sum of $3000, forty per cent of which was paid by Louis A. Mc-Ginnis and sixty per cent by defendant; the O’Malley lease was for a term of ten years from. May 1, 1906, but was by mutual consent of the parties on May 1, 1913, surrendered back to the lessor; that the Shaugh-nessy lease was for a term from May 1, 1906, to April 30, 1911; that the lessees entered into possession of said leasehold premises and sublet the same during the aforesaid respective terms, and that the defendant collected all the rents from said lessees, paid the rent due therefrom to the lessor and all expenses and repairs and upkeep of the property; that defendant derived from said business large net profits, to-wit, from the O ’Malley property a sum in excess of $18,000 as net profit, and from the Shaughnessy property a sum in excess of $4500 ; that said -Louis A. McGinnis under and by virtue of said agreement became and was entitled to receive forty per cent of said net profits, but that the defendant in violation of said agreement denied that said Louis A. McGinnis had any interest in said leaseholds or profits and has refused to pay said Louis A. McGinnis any part thereof, and has refused to render a statement of account of the same to said Louis A. McGinnis.

3. That on the first day of October, 1912, said Louis A. McGinnis assigned to the plaintiff herein all his claim or cause of action against the defendant, including the amounts due him from the defendant from the net profits of the business aforesaid and also the right to an accounting therefor.

4. The petition prays that “defendant he required to account to plaintiff for all amounts received and disbursed by defendant for or on account of said properties under his said agreement with the said Louis A. Mc-Ginnis and upon such accounting plaintiff he granted judgment for forty per cent of the net profits realized out of said properties.”

The answer contains a general denial, and pleaded a settlement between the defendant and Louis A. Mc-Ginnis on November 4, 1908, as evidenced by the following receipt, to-wit:—

“November 4, 1908. Eeceived from Thomas Mc-Ginnis eleven hundred fifty dollars as a payment in full of all demands of every kind and character up to this date, November 4, 1908.
“L. A. McGinnis.”

Upon the trial plaintiff offered evidence tending to sustantiate the allegations of the petition and the court entered an interlocutory decree for an accounting as prayed in the petition. By consent of the parties the court appointed Joseph T. Davis as referee to take and state the account. Hearing was had before the referee and the referee made his report which was approved by the court and judgment was entered thereon.

Before the matter was heard by the referee, the court ordered the defendant to file a statement of his receipts ' and disbursements in connection with the above described leases. Defendant complied with this request and filed a statement which showed that the amount of rents collected was $70,491.60' and that the expenditures for the same period amounted to $65,401.36, leaving a balance of profits in his hands of $5090.24. This statement showed the receipts and expenditures for each month during the entire period that they had possession of the leasehold premises. The following, which shows the receipts and expenditures for the month of November, 1906', may be used as a type for all the months. It was as follows:

Receipts Disbursements.

November O’Malley . 693

Thornton . 140

Ground rent O’Malley 500

Ground rent Thornton 75

x x O’Malley 150

x x Thornton 50

Vouchers O’Malley .... 48.65

Vouchers Thornton . .- 7.00

The word O’Malley in the statement refers to the O’Malley property and the word Thornton has reference to the Shaughnessy property.

Plaintiff filed exceptions to the account filed by the defendant admitting that the receipts shown thereon were correct and that defendant had paid out the ground rents therein mentioned but denied that defendant was entitled to credit for the items marked “x x” and “vouchers.”

The evidence taken before the referee may be summarized as follows:

Plaintiff offered in evidence the statement of receipts as set forth in the statement of account theretofore filed by defendant.

Witness Louis A. McGrinnis testified concerning the agreement and the procurement of the leases as mentioned in the petition. The leases were introduced in evidence. This witness testified that he paid the first three months ground rent under the O’Malley lease, amounting to $1500; that defendant was put in charge of the two leases and that defendant made arrangements with G-'eorge G-. Nlewbury & Co., a real estate firm in Chicago, to manage the property and collect the rents. A part of defendant’s deposition was offered hy plaintiff to the effect that the $3000 originally deposited on the O’Malley lease was forfeited to the lessor when the lease was surrendered, but that the defendant collected interest on this deposit during the life of the lease in accordance with the terms thereof.

Witness Louis A. McGinnis further testified that the rental of the property was turned over to Newbury & Company hy mutual consent of the partners, and that Walter H. McDonald, connected with the firm of New-bury & Co., had the active management of the property for that company; the witness states that in 1906 he asked defendant for his share of the profits, and again asked the defendant in 1907 after the defendant had returned from a trip to Arizona; that defendant was in the habit of going away for six or seven months of each years. The witness finally met defendant hy arrangement on November 4, 1908, and gave to him the receipt mentioned in the answer and received from him at that time the sum therein mentioned. In explanation of the giving of the receipt the witness states that the defendant told him that $1150 was his share of the profits; that he told defendant that there should be more coming to him, and that the defendant insisted that that was all and promised- to send him a statement of the account showing the above amount due. That he took defendant’s word as to the correctness of the amount and signed the receipt. Afterwards in May, 1910, the witness met defendant in St. Louis and the witness asked for an accounting from the defendant, hut the defendant denied that he owed him anything and walked away.

The evidence upon the part of defendant was substantially as follows:

Defendant offered in evidence the depositions of four or five witnesses taken in Chicago to the effect that these leasehold premises consisted of stores and flats and were partly occnpied as saloons, gambling houses and brothels, and that (Louis A. McGinnis knew for what purposes the property was used. This evidence was excluded by the referee.

The deposition of Walter McDonald was introduced by defendant. The witness testified that he was con* ■ nected with Newbury & Company from 1905 to 1915, and that he was now the vice-president of the corporation by the same name; that he knew the leasehold premises here in question and had charge of the subletting of the property for Newbury & Company during the times hereinbefore mentioned; that the property was kept in good repair, • water taxes were paid and a new sidewalk was constructed and 'general repairs made, such as were necessary for rental property. The witness said that he could not state off hand the total amount of rent received from the property, but he had furnished a statement at one time concerning the same. That for months it brought in gross rental of $900 and on other months it did hot bring in enough to pay the ground rent. That he turned over the rents of said property to the defendant, that is, he turned over the net amount after deducting certain expenses. That his commission for collecting rents was four per cent of the gross. That a sub-agent was paid at the sum of $150 per month on the O’Malley property and $50 per month on the S'haughnessy property. On the cross-examination this witness testified: “The name of the sub-agent was Joe Marshall. That amount was not paid him for collecting rents exactly; I know what it was paid to him for; it was paid to him for a general supervision of the block which he looked after. He kept me informed of the people that were looking for locations; of people that were about to move out; of people that were getting ‘weak-kneed.’ In other words, he kept me fully advised and informed as to the conditions down there as much as if I lived there in the premises. I paid him $150 a month for the purpose of keeping me posted as to the block and for other services; as to other services, at times he advanced money to tenants that were behind and kept the place filled . . . The same man acted as sub-agent for the Shaughnessy property, and for his services we paid him $50 per month. ... I paid this sub-agent, Joe Marshall, myself. Paid him cash; didn’t get any receipts; did business Avith money only.”

This witness further testified on cross-examination that the ledger account kept by NeAvbury & Company showing the transactions concerning this property were destroyed about the same time the company was incorporated in March, 1912; at that time the old ledgers were sold to a paper mill; that the witness furnished a statement of these collections and expenditures shortly before the books were destroyed; that he made the copy of the statement himself and furnished it to the defendant.

The deposition of defendant, Thomas McGinnis, was offered in evidence by the defendant, wherein he stated that he was unable to “answer exactly as to how much money he had received as rent from the O’Malley property,” but that he thought the total profit after deducting the $3000 forfeit was about $2000 on both properties. That Mr. McDonald rendered him an itemized statement covering the entire period as to both properties. The witness stated that he never kept a book account in his life. On cross-examination he testified that each month he looked over the statement of expenditures for this property and then destroyed the statement. The' witness testified that he authorized Newbury & Company to employ Joe Marshall as sub-agent for the O’Malley property, but that he did not order them to employ him on the Shaughnessy property.

In rebuttal, Louis A. McGinnis testified that he had never authorized any one to pay Marshall as sub-agent of the property and had no knowledge of those payments ; that on October 2, 1911, he examined the books of Newbury & Company with reference to the rents and disbursements concerning these two leases, and that at that time items “x x” and “vouchers” did not appear upon the books. That he made the copy of the net balances shown by the hooks at that time. This memorandum was® offered in evidence. Witness stated that the defendant consented that he could go and take this memorandum from the books at the time he did so. At that time a suit was pending between the two parties in Chicago concerning this same matt.er, but that the suit was afterwards dismissed. This memorandum which b.egins with May, 1906, and goes down to and including August, 1911, shows a total profit of $16,651.52

On March 8, 1915, the court overruled defendant’s application to file an amended answer. The application to file the amended answer had been made at the December, 1914, term. The exact date is hot given. This was after the case had been heard by the referee and at a time when the exceptions to the referee’s report were pending before the court. The amended answer undertook to set up the additional defense that the agreement between Louis A. McGinnis and defendant was for the purpose of carrying on an illegitimate and immoral business, and that it was the purpose and intention of said parties by said agreement to sublet said property to persons “to conduct brothels, houses of ill fame and of prostitution and gambling places, and that the said use was made of said leases, premises and property,” and that plaintiff ought not therefore to be permitted to maintain this suit.

I. Appellant contends that the rights of Louis A. McGinnis in and to the net profits in the hands of the defendant, the other partner, and the incidental right to an action to recover the same, were not assignable and hence the plaintiff cannot maintain this suit.

We are unable to agree with this contention.

The well established general' rule, concerning the assignment of canses of action, which has long been in effect- in this State, is stated in Snyder v. Railroad, 86 Mo. 613, l. c. 616, as follows: “The test to he applied in determining the assignability of canses of action is whether the cause of action would survive and pass to the personal representative of a decedent. If it would, it is transferable by the direct act of the parties. If it would not, it is not assignable.”

Under the present situation, had the death of Louis A. McGinnis occurred prior to the assignment, there can be no doubt but that his personal representative could have maintained the present action. We find nothing in the situation here presented which should prevent the application of the above announced rule.

II. It is further contended that the agreement between Louis. A. and Thomas McGinnis was within the Statute of Frauds and that since the contract was not in’ writing its terms cannot now be enforced.

Whether the contract was of such character as to bring it within the Statute of Frauds we need not now determine. This, for the reason that, even though it be conceded arguendo that it was such a contract, yet since it has been fully performed, at least by Louis A. McGinnis, it is for that reason now removed from the operation of the statute. [Bless v. Jenkins, 129 Mo. 647; Bank v. Read, 131 Mo. 553.]

III. It is contended that the court erred in failing to hold that the receipt executed by Louis A. Mc-Ginnis to Thomas McGinnis on November 4, ' 1907, was a settlement in full of all claims to that date.

. From' the evidence, which was admitted without objection, it appears that Louis A. McGinnis signed this receipt relying upon the erroneous statement of Thomas McGinnis that the amount stated in the receipt was the full amount due him at that date. Thomas McGinnis then promised to later send to Lonis A. McGinnis a statement of the account to verify his above statement. Lonis A. McGinnis had no knowledge of the matter at that time other than that told him by Thomas Mc-Ginnis. The latter did have correct knowledge of the matters about which he undertook to inform his associate, because he had received from the rental agents the net profits derived from the subletting of the leasehold premises. Under those circumstances neither Louis A. McGinnis nor his assignee, this plaintiff, is bound by the terms of the receipt. [Sawyer v. Walker, 204 Mo. 133, l. c. 159-160; Aull v. St. Louis Trust Co., 149 Mo. l. c. 17; Weatherford v. Farrar, 18 Mo. 474.]

IV. The evidence fully considered we do not feel justified in interfering with the finding of the court that appellant was not entitled to credit for the items “x x” and “vouchers” appearing in his statement of receipts and disbursements. Said items and a full statement of the evidence with reference thereto will be found in tlie foregoing statement of facts.

In brief, Louis A. McGinnis, testifying for plaintiff, stated that prior to their destruction he had examined the ledgers from which the statement filed by defendant was claimed to have been made. That when examined, said ledgers did not contain the items “ x x” and “vouchers” now relied upon by defendant.

Defendant did not appear in person as a witness before the referee in the trial court, but his testimony was given in deposition form. In reading his deposition we receive no real light and very little information concerning these items for which he now claims credit. Mis testimony on thé whole is very vague and unsatisfactory. It is true that the deposition of witness McDonald does state that the items “ x x” represented payments made to Sub-Agent Marshall for services in keeping the rental agent informed as to conditions of the leasehold premises and as to prospective tenants. This sort of an arrangement unknown to Louis A, McGinnis and costing a total of $200 per month, would without further explanation, to say the least, appear unusual'. Under the circumstances here presented the burden was upon appellant to establish the justness of any credits claimed by him in. connection with the transaction. [Thatcher v. Hayes, 54 Mich. 184, l. c. 186; Choctaw O. & G. R. Co. v. Sittel, 21 Okla. 695, l. c. 706; Dettering v. Nordstrom, 148 Fed. 81, l. c. 85 ; 9 Ency. of Evidence, 572.]

The evidence produced does not sustain that burden and we do not feel warranted in interfering with the finding made.

AnswernS

V. After the case had been heard before the referee and after the referee had made his report, the appellant asked permission to file an amended answer which undertook to set up the additional defense of the illegality of the contract between Louis A. and Thomas McG-innis. This request was refused and the action of the court in that behalf is now assigned as error.

The theory of the defense as pleaded in the original answer was: (1) that there never was any agreement between Louis A. McGinnis and the defendant concerning the transactions mentioned in evidence; (2) that defendant settled in full with Louis A. McGinnis for - all claims which he “had or might have” against defendant.

The additional defense which was attempted to be made by the amended answer is that the parties did enter into an agreement concerning the matter, hut that the agreement was an illegal one in that “it was the purpose and intention of the said parties to use the leases,” etc., for immoral and unlawful purposes.

In the case of the Weed Sewing Machine Co. v. Philbrick, 70 Mo. 646, l. c. 648, the following language of Judge Hough in speaking for the court is, we think, applicable here: “The last section of the chapter on amending pleadings requires the court to so construe the law in relation to pleadings and amending the samé,' as to discourage negligence and deceit, to prevent delay and to secure the parties from being misled. To permit a party in a suit on a written instrument, to which his name is affixed and with the execution of which he is charged, in the midst of a trial to change the issues and perhaps compel a continuance by making for the first time the defense that he never excuted the instrument sued on, when from its very nature he must have been fully cognizant from the beginning of the existence of such defense, without some evidence, at least, of mistake or inadvertence, would, in our opinion, be at variance with both the spirit and the letter of the statute, and lead to great injustice.”

To the same effect are the following authorities: Laughlin v. Leigh, 226. Mo. 620, l. c. 639, and cases therein cited; Gale, Admr., v. Foss, 47 Mo. 276.

In the case of Gale, Admr., v. Foss, supra, Judge WagNbu, speaking for the court, said: “After a jury was impaneled and the plaintiff had presented his side of the case, the defendants asked leave of the court for permission to file their third amended answer. This permission the court refused. The answer sought to be filed changed materially the whole aspect of the case, and no reason is seen why it was not filed at an earlier stage in the proceeding. The filing of amended pleadings is a matter resting largely in the discretion of the court trying the case, and we are not prepared to say that this discretion was unsoundly exercised on the present occasion.”

In the present case, if defendant was entitled to make the defense which he now attempts to set up in his amended answer he knew that fact from the date of the institution of the suit. No reason is suggested, nor does any appear from the record, why this defense was not interposed before the hearing of the testimony was concluded. The situation fully considered we are unable to say that the trial court failed to exercise a sound discretion in refusing permission to file the amended answer.

The judgment is affirmed.

All concur.