author: KENNISH, J.-

text:
    THE STATE ex rel. ISABELL ALLEN et al. v. JOSEPH A. GUTHRIE, Judge of the Circuit Court of Jackson County.
    In Banc,
    July 2, 1912.
    1. PROHIBITION: Denial of Cognizance of Cases: Demurrer. A demurrer to the return in which the respondent judge denies that he holds any cognizance of the cause and that either he or the circuit court over which he presides, contemplates any action of the kind set forth in relator’s petition, is an admission that the allegation of the return is true, and the peremptory writ of prohibition should be denied.
    2. -: Pleading: Exhibits. If relator rely upon certain record matters of procedure in the circuit court to sustain his application for a writ of prohibition, those matters should be made a part of his petition or be attached thereto as exhibits.
    3. -: Orders After Appeal: To Preserve Fruits of Litigation: Rents, etc.: Receiver. Matters affecting the property in litigation arising after judgment and an appeal, and necessary to preserve the fruits of the judgment pending the appeal, are not beyond the jurisdiction of the trial court. The court may appoint a receiver to take charge of the property pending ah appeal from its judgment setting aside a deed, where the matters as to the collection of the rents and the refusal to pay interest on an existing incumbrance and the payment of taxes, were not adjudicated, and are not covered by the appeal bond.

      Prohibition.
    Writ denied.

      J. D. Sheio alter for relators.
    (1) Eelators are entitled to a peremptory writ on the return. The writ commands respondent to show by what authority he is proceeding; this he wholly fails to do. He admits he has taken some action, o.r is about to do so, but does not ‘show by what authority. If the Practice Act applies, he has not first denied the allegations of the information; and then, as new matter, showed his action. If the Practice Act does not apply (State ex rel. v. Eby, 170 Mo. l. c. 527), then he has not made any return whatever. But, admitting, as he does, that he has or is about to take some action, he is required to show his authority for doing so. He is required to make full return, so that relators can take issue, demur, or ask for a final writ. (2) Prohibition will lie where a court acts either without jurisdiction or exceeds its jurisdiction. State ex rel. v. Withrow, 108 Mo. 1; State ex rel. v. Sale, 188 Mo. 496. The right to the writ depends on the jurisdiction or excess of jurisdiction by the lower court, and not on the mere form or the title of the action in which the court exceeds its jurisdiction, as is seriously urged by respondent. The case of Ditsch, by Guardian, v. Allen, was tried, a final judgment rendered, an appeal allowed, and an appeal bond given and approved. This must be taken as admitted by the unsatisfactory return; and it is fully shown by the petition of Mollie C. James, sworn to by her, on which the respondent was about to act, and which is filed as an exhibit with the information. This acted as a supersedeas. But, even if it did not, respondent had no power to take any action respecting the property, because of alleged defects in the original appeal. The appeal transferred not only jurisdiction of the case, but of the subject-matter from the lower court; and it passed to this court. Burgess v. O’Donoghue, 90 Mo. 299.

      Boyle é Howell, Glen L. Bruner, and B. H. Field for respondent.
    (1) The presumption is that the respondent was acting rightly and within his authority and the burden is on the relators to show just what the respondent was doing and attempting to do and how he was doing it and attempting to do it. Sec. 2625, R. S. 1909; Mitchell v. Roland, 95 Ia. 314. (2) On the application for a writ the action of the circuit court cannot be overturned by evidence dehors the record. State ex rel. v. Johnson, 132 Mo. 105. All the allegations in relators petition are allegations dehors the record and are unsupported by any record or other evidence of their truth as required by said Sec. 2625. (3) The respondent based his action on Sec. 2018, R. S. 1909, which reads: “The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed necessary, whose duty it shall be to keep and preserve any money or other thing deposited in court, or that may be subject of a tender, and to keep and preserve all property and protect any business or business interest intrusted to him pending any legal or equitable proceeding concerning the same, subject to the order of the court.” (4) That it would have been right for the respondent to have appointed a receiver of the rents and profit of the property is illustrated by the following authorities: Mitchell v. Roland, 95 Iowa, 314; Sec. 2018, R. S. 1909; Stark v. Grimes, 88 Mo. App. 409; Wilson v. Hays, 139 Mo. App. 513; Adkins v. Edwards, 83 Va. 316; Moran v. Johnston, 26 Gratt. (Va.) 108; Ulman v. Clark, 75 Fed. 868; State v. Court, 22 Mont. 241. (5) The appeal bond would not cover the rents and profits in the case even if it had been solvent and this court in its final judgment could not have protected Mollie C. James in regard to said rents and profits. Hence she has no adequate remedy except under the power of the court conferred by Sec. 2018. Berges v. Doble, 149 Mass. 256; Loan Assn. v. Kirklin, 110 Ga. 572; Anselm v. Groby, 62 Mo. App. 421; Pitt v. Swearingen, 76 Ill. 250. (6) The nature of the judgment appealed from regulates the liability of the surety. Miss. Va. Co. v. Somerville, 85 Mo. App. 265; Berges v. Doble, 149 Mass. 256. The decree appealed from does not cover liability for future rents and this is an especial reason why there was a demand for this receiver. (7) The liability of bondsmen on an appeal bond is determined by the strict letter of the ■bond. Bower v. Cabanne, 105 Mo. 110; Utterman v. Elmore, 154 Mo. App. 646; Allen v. Allen, 80 Ala. 154.
   KENNISH, J.-

— This is an original proceeding by prohibition. Isabell Allen and Edward Allen are the relators, and Joseph A. Guthrie, judge of the circuit court of Jackson county, is the respondent. The purpose of the suit is to have this court prohibit the respondent, as judge of the said court, from taking further cognizance and exercising jurisdiction in a certain cause referred to and described in the petition. Upon presentation of the petition a preliminary rule was granted. The respondent in due time made return thereto, whereupon relators filed a reply, and upon the issues thus made the cause was argued and submitted for judgment.

Much confusion and uncertainty exist as to the issues made by the pleadings. This condition of the record is due to the failure of the relators to state, fully and clearly in their petition the facts relied upon, and also because of tbeir failure to observe the uniform practice of filing, as an exhibit and as a part of their petition, the pleadings in the cause sought to be prohibited.

The facts stated in the petition for prohibition, briefly, are that in a certain suit theretofore pending in the circuit court of Jackson county, in which Oscar W. Ditseh, by guardian, was plaintiff, and relators and Mollie C. James were defendants, the court, in accordance with the prayer of the petition, annulled and set aside a deed to real estate described therein, executed and delivered by the plaintiff Ditseh to the defendant Isabell Allen, and also annulled and set aside a deed to real estate described therein, executed and delivered by the plaintiff Ditseh to the defendant Isabell Allen, and also annulled and set aside a certain deed executed and delivered by the defendant Mollie C. James to the said Isabell Allen, conveying certain residence property located in Kansas City. In the decree entered the court adjudged, among other things, that the defendant Mollie C. James was entitled to the residence property theretofore conveyed to Isabell Allen, and to the possession thereof, and also rendered a personal judgment against -the said Isabell Allen and Edward Allen, in favor of the said Mollie C. James, for the sum of $3500, the same to be a lien, until paid on a certain manufacturing business belonging to the said Allens in said city. The defendants (relators herein) and the defendant Mollie C. James appealed from the said judgment to the Kansas City Court of Appeals. That court transferred the cause to this court, upon a .question of appellate jurisdiction, and it is now pending and undisposed of in this court. It is further alleged in the petition for prohibition that a supersedeas bond was given by appellants Isabell Allen and Edward Allen in said cause, in the sum of $7000 and that afterwards the said Mollie C. James appeared in the said circuit court “and asked the court to appoint a receiver to take charge of said real estate during the pendency of the suit.” That the appointment of a receiver was asked upon the sole ground that the security upon the said bond was insufficient and that the appeal was taken to the Court of Appeals instead of'to this court. That after considering the application the respondent decided to appoint a receiver as prayed, and that respondent, as said circuit judge, is without jurisdiction to make such appointment. The prayer of the petition is that a writ of prohibition be issued ‘ ‘ directing the said judge to show cause why he should not be prohibited from exercising jurisdiction in the cause now pending in this court,” etc.

Upon the petition thus filed a preliminary rule was granted by this court and served upon respondent, together with a copy of the • petition. The rule, omitting formal parts, was as follows:

THE STATE OF MISSOURI, to Joseph A. Guthrie, as Judge of the Circuit Court of Jackson County, Missouri, greeting:
Whereas, on the 17th day of January, 1912, it was represented to the Supreme Court of Missouri, in a certain application for a writ of prohibition (a copy of which petition is hereto attached) that you, the said Joseph A. Guthrie, as Judge of the Circuit Court of Jackson County, Missouri, hold cognizance in a certain cause pending before you wherein Oscar Ditsch is plaintiff and Isabell Allen et al. are defendants; and we, being willing to maintain the rights of the State and the laws and customs thereof;
“Now, therefore, you, the said Joseph A. Guthrie, as Judge of the Circuit Court' of Jackson County, Missouri, are hereby commanded to be and appear before the Supreme Court of the State of Missouri, In Bane, on the first day 'of March, 1912, and show cause, if any you have, why a writ of prohibition should not issue as prayed in the petition herein, prohibiting you from further assuming and exercising jurisdiction in the cause aforesaid, and that in the meantime you take no further action in the said cause until the further order of this court.

In his return respondent alleges that he “does not hold any cognizance whatsoever in the cause wherein Oscar Ditsch is plaintiff and Isabell Allen et al. are defendants, being the cause described in the preliminary rule,” and further that “in said cause neither he as judge, nor the circuit court of Jackson county, Missouri, contemplates the appointment of a receiver of the real estate described in the relators’ petition, nor has there been any application made in said cause by said Mollie C. James or anyone else, for the appointment of any receiver of the real estate described in the relators’ petition.”

The reply consists of a paragraph in the nature of a demurrer to the return and a prayer that the peremptory writ be issued; also three additional paragraphs which are merely a restatement, in different language, of the matters alleged in the petition.

The statute applicable in such cases (Sec. 2626, R. S. 1909) authorizes the defendant to demur to the petition for prohibition or “make return to the preliminary order.” In this case the respondent made return to the preliminary order, which return, so far as material, denied that he had exercised or contemplated exercising jurisdiction in the cause described in the preliminary rule. This return is responsive to the rule of this court and presented an issue of fact.There was no affirmative defense alleged in the return requiring a denial or the allegation of new matter in the reply. Consequently we shall treat the case as being at issue upon the first paragraph of the reply, which is as follows:

“Now come the relators, and for their answer or reply to the return of the respondent, state: First, that the respondent has not complied with the rule of this court) in that he has made no proper return, showing any legal justification for his acts in the premises; nor has he complied with the rule served upon him, whereby relators are entitled to a peremptory writ. ’ ’

It is apparent that the cause in which it was represented to this court that the respondent held cognizance and in which the preliminary rule commanded the respondent to appear in this court and show cause why a writ of prohibition should not be issued, prohibiting him from assuming and exercising jurisdiction therein, and in' the meantime commanding him to take no further action, was the cause, as stated in the preliminary rule, “wherein Oscar Ditsch is plaintiff and Isahell Allen et al. are defendants.” The return is directly responsive to the petition and to the rule of this court, and as the facts stated therein stand admitted by the demurrer, at least as to the cause in which jurisdiction is sought to be prohibited, we think it is a sufficient showing by the respondent that the preliminary rule was improvidently granted and that the peremptory writ of prohibition should be denied.

In relators’ statement and brief a number of what are termed “exhibits” are set forth. Except numbers 1, 2 and 3, being respectively the petition, return, and reply, they were not filed with the pleadings and do not constitute any part of the record in this court. If relators were relying upon such matters as constitutive of their cause of action, they should have been made a part of their petition or have been attached thereto as exhibits. Notwithstanding the fact that these exhibits are not properly in the case, we have examined them and are satisfied that even if they had been made a part of the record the result must have been the same. It appears from these exhibits and the briefs on file that the suit in which the respondent was in fact asked to appoint a receiver was the case of Mollie C. James v. Isabell Allen and Edward Allen, relators herein. It also appears that relators had taken an appeal from the judgment in which the court had held the said Mollie C. James entitled to the residence property theretofore conveyed by her to relators, and that relators, having-given an appeal bond, remained in possession of the property. It also appeared in the. petition of the said Mollie C. James for the appointment of a receiver, that relators had placed an incumbrance on the said property, which the court had held tó be a valid lien, and further that relators, although collecting and appropriating the rents, refused to pay the interest on said incumbrance or the taxes levied against the property. These matters as to the collection of rents and the refusal to pay interest and taxes were not adjudicated in the case of Ditsch v. Allen et al. They arose after the appeal was taken in that case and are not covered by the appeal bond. Mrs. James was entitled to her property when the litigation was ended, unless the judgment should be reversed,' and that part of the judgment was not covered by the appeal bond given by the Allens in double the amount of the personal judgment rendered against them in favor of Mrs. James. The supersedeas bond would not prevent a foreclosure and sale of the property for default in the payment of the interest on the incumbrance, nor a sale for delinquent taxes, and Mrs. James was not required to stand by helplessly looking on while relators collected the rents but refused to pay the charges on the property and to take such care thereof as was neces: sary to preserve the status in quo. Matters affecting the property in litigation, arising after the judgment and necessary to preserve the fruits thereof pending an appeal, are not beyond the jurisdiction of the lower court.

Under the facts of this case, as disclosed by the pleadings, exhibits and briefs, we think the court was possessed of jurisdiction to appoint a receiver for the protection and preservation of the property pending the appeal. [Sec. 2018, R. S. 1909; 2 Cyc. 978, and cases cited; Mitchell v. Roland, 95 Iowa, 314; Alderson on Receivers, Sec. 93; High on Receivers, Sec. 110.J

The law upon this subject is well stated in 2 Cyc., supra, as follows:

“An appeal does not always deprive the lower court of all jurisdiction so as to prevent absolutely any action, even though such action be not in execution of the judgment apealed from; but, on the contrary, the case is often regarded as pending in the court of original jurisdiction for the purposes of other proceedings than such as pertain to the subject-matter of. the judgment' itself, or to the appeal and the proper hearing thereof, and incidental matters necessary for the preservation of the fruits of the ultimate judgment or the status in quo of the parties are not placed beyond the interference of the lower court. For the latter purposes the court may make an order providing for renting or leasing of property, or order investment of funds resulting from the sale of property under an order made pending litigation. But it cannot proceed in such a manner as to execute its judgment or place the funds beyond the control of the ultimate result of the litigation.
“Upon such a step becoming necessary for the preservation and conservation of property pending the appeal, a receiver may be appointed, upon proper application being made to the court below. This authority is also exercised under statutory provisions.”

The peremptory writ should be denied. It is so ordered.

All concur.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    HARRIET R. ARMSTRONG et al. v. MODERN BROTHERHOOD OF AMERICA, Appellant.
    Division Two,
    July 5, 1912.
    1. INSURANCE: Fraternal Association: Certificates Payable to' Legatee. The mere fact that a member of a fraternal beneficiary association, organized under the laws of another State and licensed to do business in this State, may procure a certificate payable to some person not specifically designated in the Missouri 'statute (for instance, to legatees of its members), does not have the effect of converting said association into an old-line insurance company. Though the word legatee does not appear in the Missouri statutes as one of the persons named to whom the certificate may be made payable, yet the fact that certificates of such association are issued in favor of legatees does not tend to impair or endanger its financial standing, nor does it destroy the purposes for which it was organized. [Disapproving Dennis, v. Modern Brotherhood of America, 119 Mo. App. 210.]
    2. -: -: -: Suicide as a Defense. Suicide as a defense to a certificate of insurance made payable to the insured’s wife and son is not to be denied on the ground that the fraternal beneficiary association issuing it had the power, by its by-laws and the statutes of its State, to issue certificates payable to legatees; nor is such association, because it has such power, to be considered as an old-line insurance company.
    3. -: -: Distinguishing Character. The- dividing line between fraternal beneficiary associations and old-line insurance companies is that such associations are organized to protect their members and such other persons as are proper subjects of their benevqlence, and are not to be used for profit to the persons organizing them or carrying on their business; while the old-line insurance companies are organized primarily for profit to the persons owning their corporate stock.
    4. -: -: Certificates Payable to Legatees: Action of Insurance Commissioner. The ruling of the Superintendent of Insurance, who issues to a foreign company, empowered by its by-laws and the statutes of its State to issue certificates payable to legatees, a license to do business in this State, is not conclusive upon the court that such company is a fraternal beneficiary association, but where there is real doubt as to the meaning of the law the courts will usually follow the construction he by that act places upon it.
    Appeal- from Ralls Circuit Court. — Ron. D. R. Eby, Judge.
    Reversed.

      Ball & Sparrow for appellant.
    (1) Armstrong having committed suicide, respondents cannot recover, provided appellant is a fraternal benefit society. Armstrong agreed in his application for membership, that in the event of his death by suicide his benefit certificate should become null and void. The benefit certificate issued to him contained a provision to the same effect. Respondents having admitted on the trial of this case that Armstrong committed suicide the law is well settled that they cannot recover in this action, provided appellant shows itself to have been doing the business of a fraternal benefit society in Missouri, within the provisions of the law of said State governing such societies. Morton v. Royal Tribe of Joseph, 93 Mo. App. 92; Brasfield v. M. W. A., 88 Mo. App. 208; Hudnall v. M. W. A., 103 Mo. App. 356; Shotliff v. M. W. A., 100 Mo. App. 138; McDermott v. M. W. A., 97 Mo. App. 636. (2) Appellant is a fraternal benefit society within the meaning of Sec. 1408, R. S. 1899. At the time of issuing Armstrong’s benefit certificaté, as well as at the time of his death, fraternal benefit societies, both domestic and foreign, were defined, governed and controlled by Secs. 1408-1428, R. S. 1899. For appellant to be a fraternal benefit society within the meaning of See. 1408, the following conditions must exist: First: The society must be organized for the sole benefit of its members and their beneficiaries, and not for profit. Appellant fills this requirement. Second: It must have a lodge system with ritualistic form of work and representative form of government. Appellant has each of these. Third: It shall make provision for payment of benefits in case of death, and may make provision for benefits in case of disability, accident or old age. Appellant makes all of these provisions. Fourth: The funds ■ with which these benefits are paid must be raised by assessments, beneficiary calls and dues collected from its members. This is the only way the appellant has of raising funds for such purposes. It is our insistence that that part of Sec. 1408, R. S. 1899, designating the class of persons to whom benefit certificates may be made payable, is no part of the definition or description of a fraternal benefit society, and our contention is supported by sound reasoning, and by the weight of authority in this State. Pauley v. M. W. A., 113 Mo. App. 473; Loyd v. M. W. A., 113 Mo. App. 19. A forceful illustration of the rule that a foreign corporation will not be denied recognition in this State, in the capacity in which it seeks admission, simply because its charter powers in its home jurisdiction are broader than those which it is permitted to exercise in this State is afforded in the case of State ex rel. v. Cook, 171 Mo. 348. Tice v. Lodge, 123 Mo. App. 85, 204 Mo. 349; Westerman v. Lodge, 196 Mo. 670.

      E. L. Alford and J. O. Allison for respondents.
   BROWN, P. J.

— Action on a life insurance policy. From a judgment for plaintiff in the circuit court of Ralls county, Missouri, defendant appealed to the St. Louis Court of Appeals, where the judgment of the circuit court was reversed and the cause certified to this court; the opinion of the St. Louis Court of Appeals being in conflict with the decision of the Kansas City Court of Appeals in the case of Dennis v. Modern Brotherhood of America, 119 Mo. App. 210.

The defendant brotherhood was organized under the laws of Iowa, and is licensed to transact business in Missouri. On November 26, 1902, after the defendant brotherhood had. been licensed to carry on its business in Missouri, one John A. Armstrong, a citizen of Missouri, became a member of said brotherhood, and procured therefrom a beneficiary certificate in the sum of $1,000, payable at his deáth to his wife, Harriet R. Armstrong, and his son, Charles M. Armstrong, who are the plaintiffs in this action. This certificate contained a proviso that if the said John A. Armstrong committed suicide the certificate should become null and void and all rights thereunder absolutely forfeited.

The petition is based upon the beneficiary certificate above mentioned. The answer admits that said John A. Armstrong paid all his dues to the defendant brotherhood up'to the first day of March, 1905, on which day he committed suicide. Plaintiff’s reply does not deny the suicide, but as a defense to that part of the answer in which suicide is pleaded, alleges that defendant is not a fraternal beneficiary association under the laws of Missouri; that the certificate was not issued in compliance with the laws of our State;.and, therefore, the provision in the policy that the same should be forfeited in case of the suicide of the insured, is illegal and without effect, being in violation of Sec. 7896, R. S. 1899 (Sec. 6945, R. S. 1900).

It is conceded that the defendant was licensed to transact business in Missouri as a fraternal beneficiary association under the provisions of Sec. 1410, R. S. 1899 (Sec. 7112, R. S. 1909), and that under its by-laws and the statutes of Iowa it could issue certificates for the benefit of legatees and legal representatives of its members.

The trial court held that because defendant was authorized to issue benefit certificates to classes of persons not designated in the laws of Misouri, to-wit, legatees and legal representatives, it should be treated as an old-line insurance company.

The laws of Missouri, Sec. 1408, R. S. 1899 (Sec. 7109, R. S. 1909), provide that fraternal beneficiary associations may issue their certificates of insurance in favor of “the families, heirs, blood relatives, affianced husbands or affianced wives of, or to persons dependent upon, the member.” It will thus be seen that the laws of Iowa as well as the by-laws of the defendant authorize fraternal insurance in behalf of at least one class of persons not authorized by the laws. of Missouri.

The issue presented is whether or not the by-laws of the defendant and statutes of Iowa, under which it is acting, are so different from the laws of Missouri i bat it cannot properly be classed as a fraternal beneficiary association, and should therefore be denied the immunities granted to fraternal beneficiary associations incorporated under the laws of Missouri, and subjected to the same restrictions placed upon old-line insurance companies, particularly by Sec. 7896, R. S. 1899, Sec. 6945, R. S. 1909, which ordains that suicide shall be no defense to an action on a life insurance policy, unless it can be shown to the satisfaction of the jury or court trying the case, that the party to whom the policy was issued contemplated suicide at the time of making the application therefor.

There is no proof in this case that John A. Armstrong 'contemplated suicide when he procured the beneficiary certificate which forms the basis of this action.

The Kansas City Court of Appeals, after considering this identical proposition with great care in another suit, arrived at the conclusion that this defendant is not entitled to the immunities of a fraternal beneficiary association of Missouri, and should not be allowed to set up, as a defense to an insurance policy issued by it, the suicide of the member to whom the certificate was issued. [119 Mo. App. 210.] In the instant case, the St. Louis Court of Appeals has taken exactly the opposite view of the law which must govern the decision of this case.

Since this case was certified to this court, a similar issue has again been presented to the St. Louis Court of Appeals, in the case of Ordelheide v. Modern Brotherhood of America, 158 Mo. App. 677. . In the latter case, Reynolds, J., has reviewed the law governing fraternal benefit associations with great learning and industry, and has arrived at the conclusion that the words “legal representatives” as used in defendant’s by-laws, and the statutes of Iowa under which it is operating, do not embrace administrators or executors, but apply only to persons who would inherit from the insured by consanguinity. "We agree in what is said by Brother Reynolds to the effect that the words “legal representatives” do not constitute a separate class of beneficiaries; and after a careful review of all the authorities cited, we have arrived at the conclusion that the defendant is a fraternal beneficiary association; and therefore may plead the suicide of Armstrong as a defense to this action.

Sec. 1408, R. S. 1899 (Sec. 7109, R. S. 1909), under which the certificate in suit was issued, defines a fraternal beneficiary association to be a voluntary association “formed or organized and carried on for the sole benefit of its members and their beneficiaries, and not for profit. Each association shall have a lodge system, with ritualistic form of work and representative form of government, and shall make provisions for the payment of benefits in case of death, and may make provisions for the payment of benefits in case of sickness, temporary or permanent physical disability, either as the result of disease, accident or old age.”

The main dividing line between fraternal beneficiary associations and old-line insurance companies is that the former are organized to protect their members and such other persons as are proper subjects of their benevolence, and not for profit to the persons organizing or carrying on such associations; while the old-line insurance companies are organized primarily for profit to the persons who own their corporate stock.

We do not think the mere fact that a member of one of these fraternal organizations may procure a certificate payable to some person not specifically designated in the statute, should have the effect of destroying the purposes of the association and putting it in the same class as old-line companies.

The fact that defendant issues beneficiary certificates in favor of the legatees of its members, does not tend to impair or endanger its financial standing or to destroy the purposes for which it is organized. In fact, its ability to issue such certificates tends to promote its growth and welfare. The larger the membership of defendant’s fraternity, the smaller will be the per capita expense of insuring its members.

The success of an association of the character of defendant in a large measure depends upon its ability to gather into its fraternity and retain a large number of persons of congenial ideas, possessing the qualifications required by its charter and by-laws. The power of defendant to insure the lives of its members for the benefit of persons selected by such members, is no doubt the chief inducement which it holds out to the public to secure members; consequently, anything which tends to bring to it more recruits possessing the proper qualifications, the greater will be its prosperity and financial standing.

It is a well-known fact that many persons possessing the necessary qualifications to become members of a fraternity like defendant, do not have “relatives, dependents, affianced wives,”'etc., for whom they entertain such a degree of affection or friendship as to prompt them to secure insurance. Such persons would naturally refuse to join the defendant’s fraternity, if not allowed to take out policies in favor of other persons of a class not mentioned in Section 1108, R. S. 1899.

On the other hand, by allowing its members to insure their lives for the benefit of their legatees, it may secure many members which it could not otherwise obtain.

It is the common experience of mankind that in making wills, testators -do not bequeath substantial legacies except when there is a strong reciprocal affection or friendship between the testator, and legatee ; and we see no reason why the act of insuring life for the benefit of a legatee would be more likely to shorten the life of the insured than if the certificate was in favor of a “blood relative.”

The decision of the Kansas City Court of Appeals (119 Mo. App. 210) proceeds upon the theory that ■the statutes having designated certain classes of persons for whose benefit certificates of insurance may be issued by fraternal insurance companies, the power to issue such certificates in favor of any other class of persons destroys the fraternal character of the association. This conclusion rests upon a cold, barren technicality, such as is often invoked in criminal cases; but we are not informed of any rule which requires the insurance laws to be construed as rigidly as the criminal code. "We think the rule announced in the last mentioned case is erroneous.

The learned Insurance Commissioner who issued the license to the defendant to carry on its business in the State of Missouri was evidently of the opinion that the power possessed by it to insure legatees would not destroy its character as a fraternal beneficiary association. His ruling upon this point is not conclusive upon us; but where there is real doubt as to the meaning of the law, we usually follow the construction placed upon it by the executive officer of the State charged with the duty of enforcing it. [Westerman v. Supreme Lodge K. of P., 196 Mo. 670, l. c. 709; and cases there cited.]

The insured, John A. Armstrong,, evidently believed defendant to be a fraternal beneficiary association, for he so treated it in his application for mem-, bership and insurance. He also agreed in writing that in case he committed suicide, whether sane or insane at the time, his policy should by that act become void.

No doubt the members of defendant’s order in Missouri have invested large sums of money in purchasing insurance on the theory and with the understanding that it is a fraternal beneficiary society, and not an old-line insurance company.

The good faith of its members in purchasing insurance of defendant was based on the action of the Insurance Commissioner in granting it a license to transact business in Missouri.

To uphold the policy according to its terms, will mislead or injure no one; but to treat the policy as if issued by an old-line insurance company, will amount to a great hardship upon thousands of persons who have acted in good faith.

The construction placed upen the law by the Insurance Commissioner was a reasonable one, and not in violation of any express statute; and therefore, we decline to hunt up or consider any hair-splitting technicalities in order to find an excuse for nullifying his official act.

The suicide of John A. Armstrong constitutes a complete defense to the plaintiffs ’ cause of action. The judgment of the circuit court of Ralls county is reversed.

Kennish and Ferriss, JJ., concur.


author: ROY, C. PER CURIAM.

text:
    THE STATE v. ALECK RICH, Appellant.
    Division Two,
    July 5, 1912.
    1. INFORMATION: Proof: Variance. Under Sec. 5114, R. S. 1909, providing that whenever there shall he a variance between the indictment and the evidence in the description of any matter or thing therein described, such variance shall not. he ground for acquittal unless the trial court shall find the variance is material and prejudicial, the Supreme Court refuses to declare error in an information which charges the receiving of stolen goods, to-wit, “'four hundred and fifteen pounds of copper,” where the evidence showed that it was “two hundred and thirty-six copper wash-boiler bottoms, weighing four hundred and forty-eight pounds, with tin finish on the inside and a gloss finish on the outside,” where there was no question of identity of the property, and where the trial court did not find that the variance was material.

      2. RECEIVING STOLEN GOODS: Intent. The intent with which stolen goods are received is not an element of the offense.
    3. APPEAL: Bill of Exceptions: Witnesses: Instructions. In order to co.nviet the trial court of error in having given an instruction as to the credit to he given to the testimony of defendant’s wife (appellant’s contention -being that the hill of exceptions does not show that she testified at all), the hill of exceptions should in some way affirmatively show that the wife did not testify.
    Appeal from St. Louis City Circuit Court. — Ron. J. Rugo Grimm, Judge.
    Arpiemeu.

      Bass & Bass for appellant.
    (1) Appellant’s motion at the close of the State’s case to discharge upon the ground of variance should have been sustained. State v. Plant, 209 Mo. 307; State v. Shapiro, 216 Mo. 359; State v. Ballard, 104 Mo. 639. (2) The court misdirected the jury. Under the instructions given by the court the jury were authorized to convict if the appellant bought or received the “property mentioned in the evidence.” The charge is that the property stolen and afterwards bought and received was “copper;” the evidence showed it to “be wash-boiler bottoms.” State v. Plant, 209 Mo. 307; State v. Shapiro, 216 Mo. 359. (3) The crime of receiving or buying property known at the time to be stolen consists in so buying or receiving it with a fraudulent intent. The court should have so instructed. People v. Johnson, Parkers Crim. Repts. 564; Whart. Crim. Law (10 Ed.), Sec. 988. (4) The instruction, that if the jury “believe and find from the evidence that the defendant made voluntary statement or statements in relation to the offense,” should not have been given — there is no evidence upon which to base it. State v. Tyrell, 201 Mo. 574. (5) There is no evidence in the record that the wife testified, the instruction given thereon is clearly a comment upon- the evidence, and the general instructions as to the credibility of witnesses given by the court cover the matter and were sufficient. State v. Tyrell, 201 Mo. 574; Stetzler v. Railroad, 210 Mo. 713.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for the State.
    (1) The information is bottomed on Sec. 4554, E. S. 1909, and contains all the necessary elements to charge the offense under that statute. It is in a form approved by precedents of this court. -It is good', valid and sufficient. State v. Fink, 186 Mo. 50; State v. Kosky, 191 Mo. 1; State v. Richmond, 186 Mo. 71. (2) There is no variance in the cause. State v. Flora, 109 Mo. 293. (3) The instructions in this cause, without enumerating them, have all been substantially approved in the case from which they were patterned. State v. Kosky, 191 Mo. 1.
   ROY, C.

— The defendant has appealed from the judgment of the circuit court of the city of St. Louis convicting him of receiving stolen goods and sentencing him to the penitentiary for two years.

The information charged the defendant with buying and receiving four hundred and fifteen pounds of copper, knowing that it had been stolen.

The evidence tended to show that on o.r about August 22, 1910, a room at the factory of the Nelson System Manufacturing Company, a corporation, was burglarized and two hundred and sixty-six copper wash-boiler bottoms stolen therefrom. These “wash-boiler bottoms” were of copper and weighed all together four hundred and forty-eight pounds. The bottoms had a tin finish on the inside and a gloss finish on the outside. They were intended to be used in the manufacture of wash boilers and were of special size, shape and finish.

The defendant was a junk dealer. The evidence tended to show that the bottoms were worth twenty cents a pound, and that defendant bought them from a man at eight cents a pound', and there was other evidence tending to show knowledge on the part of defendant that the goods were stolen.

There was evidence showing that defendant made statements to the police as to his purchase of the goods and as to his selling them to one Seltzer.

The bill of exceptions does not purport to set out all the evidence in the case, but simply states that “this was substantially the testimony.”

At the close of the State’s evidence in chief, the defendant asked an instruction in the nature of a demurrer to the evidence, and moved the discharge of the defendant oh the ground of variance.

The demurrer was refused, and the motion overruled. The first instruction set out all the essential elements of larceny and told the jury that if they found that the copper had been stolen by another party and that the defendant did knowingly and wrongfully receive said property into his possession, knowing at the time that he received it that it was stolen, they should convict him of receiving stolen property.

There was the usual instruction on the subject of statements made by the defendant, and also as to the evidence given by the defendant and his wife.

I. Sec. 5114, R. S. 1909, provides that whenever there shall be a variance between the indictment and the evidence in the description of any matter or thing therein described such variance shall not be ground for acquittal unless the trial court shall find that such variance is material and prejudicial.

The property described in the information was “four hundred and fifteen pounds of copper,” while the evidence showed that it was “two hundred and sixty-six copper wash-boiler bottoms, weighing four hundred and forty-eight pounds, with tin finish on the inside and a gloss finish on the outside.”

"We do not regard it as a case of failure of proof. The thing stolen was copper. True it was in process of manufacture, but it was not in the finished form.

It would have been well had the pleader alleged that' it was “copper wash-boiler bottoms.” But that is just such a variance as the statute is intended to remedy. The trial court did not find that the variance was material or prejudicial, and the alleged variance, for that reason, did not affect the defendant’s rights. In this case the property stolen was the same as that received by the defendant. There is no question as to identity of the property.

In State v. Ballard, 104 Mo. 634, the defendant was indicted for stealing “one red brindle, white, line back cow.” The owner of the cow testified that it was a “red and white spotted, line back cow” that was stolen; while the cow found in the defendant’s possession was shown by the evidence to be a “red and white spotted cow. ” It is thus seen that the cow in the defendant’s possession in that case was not shown to be the same one which was stolen. It was held to be a total failure of proof.

In State v. Plant, 209 Mo. 307, the thing shown by the evidence to have been stolen was ‘£ a diamond shirt stud,” while the article found in possession of thé accused was a “diamond ring.”

Leaving out of consideration in both those cases the description in the indictments, there was a lack of identity between the'things stolen and the things found in possession of the respective defendants. It was not in either case a question of variance between the charge and the proof, but a failure to prove the theft in any form.

In the Ballard case, supra, the court said: “The variance between the description of the cow as given in the indictment, and that of the cow proved to have been stolen, would not avail defendant unless the circuit court found that such variance was prejudicial to him.”

It was held in State v. Crow, 107 Mo. 341, that proof of the theft of a heifer under an indictment charging the theft of a cow was not a fatal variance where the trial court did not find it prejudicial to the defendant. We rule this point against the appellant.

II. Appellant contends that the court should have instructed the jury that in order to constitute the offense the defendant should have received the goods with a fraudulent intent. The intent with which the goods are received is not made an element of the offense by-the statute.

It is said in 1 Wharton’s Crim. Law (10 Ed.), Sec. 988, “When the statute requires an intent it must be laid.” That implies that where the statute does not call for an intent none need be stated.

In State v. Sakowski, 191 Mo. l. c. 652, this court said: “It would have been amply sufficient under the statute to have required the jury to find that some person other than the defendant stole, took and carried away the goods -described in the indictment, and that the defendant, knowing them to have been stolen, received the same.”

In State v. Richmond, 186 Mo. l. c. 81, it was said: “The very essence of the offense is the receiving, knowing them to have been stolen.”

III. There was evidence on which to base the instruction as to statements made by the defendant, and the court did not err in giving that instruction. The contention that there is no showing 'in the bill of exceptions that the defendant’s wife testified, and, therefore, that the instruction as to the credit to be given to her testimony should not have been given, cannot be sustained. There is no statement in the bill that the wife did not testify. The bill merely states that it contains substantially tbe evidence in tbe case. It does not even state that it contains tbe substance of all tbe evidence in tbe case. In that condition of tbe bill of exceptions we are bound to presume that tbe wife testified. In order to convict tbe trial court of error in that respect, tbe bill of exceptions should in some way affirmatively show that tbe wife did not testify.

The judgment is affirmed.

Blair, G., concurs.

PER CURIAM.

— Tbe foregoing opinion of Roy,

C., is adopted as tbe opinion of tbe court.

All tbe judges concur.


author: BLAIR, C. PER CURIAM.

text:
    PARKE, DAVIS & COMPANY, Appellant, v. FRED MULLETT.
    Division Two,
    July 5, 1912.
    1. CORPORATIONS: Foreign: Local Statutes: Compliance With: , Contracts. The transaction of business in this State by a foreign corporation in violation of Secs. 3039 and 3040, R. S. 1909, is unlawful and contrary to State policy, and every contract in furtherance of such business is void.
    2. -: -: -: Subsequent Compliance: Contracts. And where a foreign corporation was, when it executed a contract, doing business in this State in violation of Secs. 3039 and 3040, R. S. 1909, such contract will not be rendered valid by subsequent compliance with the statute.
    3. BILLS AND NOTES: Consideration Partly illegal: Corporations. Where a part of the consideration for a note was the sale of goods by a branch office in this State of a foreign corporation acting in violation of Secs. 3039 and 3040, R. S. 1909, the note is void, even though the remainder of the consideration might have been legal.
    4. CORPORATIONS: Foreign: Contracts: Estoppel. The president of a corporation executed a note to a foreign corporation, part of the consideration for which was a sale of goods within the State in violation of S'ecs. 3039 and 3040, R. S. 1909. The note was sold to another corporation which soon was adjudi cated bankrupt. Subsequently tbe president secured an allowance for tbe amount of the note against tbe bankrupt’s estate and received a dividend. Held, that he was not estopped thereby from setting up tbe invalidity of tbe note.
    5. BILLS AND NOTES: Illegal Consideration: Instrument Cannot be Ratified. Tbe fact that tbe maker of a note or bis agent recognizes its validity does not render it valid at law when a part of its consideration was tbe sale of goods within tbe State by tbe payee, a foreign corporation which bad not complied with tbe conditions precedent prescribed by Sec. 3039, R. S. 1909.
    Appeal from Jackson Circuit Court. — Hon. J. G. Park, Judge.
    Affirmed.

      Charles M. Woodruff and J. W. Crowley for appellant.
    (1) "Where a contract for the sale of property is void because entered into in violation of the statute governing foreign corporations doing business in Missouri, the title to property delivered pursuant to such contract remains in the original owner, and the equities not being against it and no other law preventing, it maintains the proper action to recover snch property. Roeder v. Robertson, 202 Mo. 535. If the property has been consumed or disposed of, the value thereof may be recovered. Trans. Co. v. Pullman Co., 139 U. S. 24; Pullman Co. v. Trans. Co., 171 U. S. 138; Dunlop v. Mercer, 156 Fed. 545; 28 Am. and Eng. Ency. Law (2 Ed.), 656, 716. Such value therefore is a valid indebtedness and a note given in payment of such an obligation is based upon a valid consideration. The giving and receiving of a note under such circumstances does not constitute doing business within the meaning of the foreign corporation statutes of Missouri. Tube Co. v. Riehl, 9 Pa. Sup. Ct. 220; Ins. Co. v. Sawyer, 44 Wis. 387; Tallapoosa Co. v. Holbert, 5 N. Y. App. 559; Mfg. Co. v. Ferguson, 113 U. S. 727; Bateman v. Milling Co., 20 S. W. (Tex.) 931. (2) To invalidate a contract entered into within a State by a foreign corporation which is doing business in such State in .violation of the State law, it is necessary that the contract itself be and constitute a violation of such statute. Amusement Co. v. Amusement Co., 192 Mo. 404; 19 Cyc. 1289; Tube Co. v. Riehl, 9 Pa. Sup. Ct. 220. (3) Where a foreign corporation, which does business in Missouri, institutes action in a court of the State, upon a valid cause of action without first complying with the laws of the State governing foreign corporations, such suit will not be' abated, nor will the right of the corporation to maintain it be affected if it complies with such laws previous t.o trial. Carson Co. v. Stern, 129 Mo. 381; 19 Cyc. 1301, 1303. (4) Respondent should be estopped from questioning the validity of the note sued on herein. Hensinger v. Dyer, 147 Mo. 219; Bramell v. Adams, 146 Mo. 70; Treacy v. Chinn, 79 Mo. App. 648; Alleman v. Manning, 44 Mo. App. 4; Association v. Kehlor, 7 Mo. App. 158.

      Clarence I. Spellman and Edward W. Taylor for respondent.
    (1) Parke, Davis & Company, a Michigan corporation, was doing business in Missouri in violation of Secs. 1024-1026, R S. 1899, and cannot maintain an action upon the note in controversy. Amusement Co. v. Amusement Co., 192 Mo. 404; Mill Co. v. Sims, 197 Mo. 507; Roeder v. Robertson, 202 Mo. 522; Mfg. Co. v. Const. Co., 124 Mo. App. 362; Bank v. Leeper, 121 Mo. App. 688; Buggy Co. v. Priebe, 123 Mo. App. 521; Lead Co. v. Mining Co., 221 Mo. 7; Fruit Co. v. McKinney, 103 Mo. App. 304. (2) A foreign corporation incapacitated from maintaining an action because of noncompliance with our laws respecting license, cannot cure such incapacity by taking out a license after suit begins. Lead Co. v. Zinc Co., 221 Mo. 7; Thompson v. Whitehed, 185 Ill. 454; Cary-Lombard v. Thomas, 92 Term. 587; Halsey v. Dramatic Co., 99 N. Y. Supp. 1124; Brewing Co. v. Peimeisl, 85 Minn. 124; Mill Co. v. Sims, 197 Mo. 507; Amusement Co. v. Amusement Co., 192 Mo. 404. (3) If a portion of the merchandise was sold, in Detroit, yet if the remainder was sold in Missouri in violation of law, the note is tainted and therefore bad. In other words, where a part of the consideration entering into a promissory note is void the whole note is void. This may either be where the subject matter is contrary to statute or to public policy. Bick v. Seal, 45 Mo. App. 475; Sash Co. v. Gough, 81 Mo. App. 440; Malone v. Fidelity Co., 71 Mo. App. 1; Friend v. Porter, 50 Mo. App. 89; Buckingham v. Fitch, 18 Mo. App. 91; Mitchell v. Branham, 104 Mo. App. 480; Woolfolk v. Duncan, 80 Mo. App. 427; Patton v. Nicholson, 1.6 U. S. 204; Miller v. Amon, 145 U. S. 421; Penn v. Bornman, 102 Ill. 523.
   BLAIR, C.

— This.is an action on a note instituted May 29, 1905, by Parke, Davis & Company, a Michigan corporation. An answer was filed, the averments of which elicited a reply (in 1907) wherein it was alleged, among other things, that plaintiff had not, prior to December 22, 1905, complied with the statute requiring foreign corporations to secure license before transacting business in this State; that plaintiff had divided its business into two departments, the “line department” and the “formula department;” that in the “line department” plaintiff transacted business in Missouri but in the “formula department” it did not, the business of that department being transacted at the home office in. Michigan; that about one-third of the amount represented by the face of the note accrued from business transacted and goods sold and delivered in Missouri by plaintiff’s branch office in Kansas City and .the remainder accrued from the sale of goods by the home office in Michigan.

The reply further alleged that the whole amount represented goods sold or manufactured for corporations of which defendant was president, the assets of which were subsequently (Oct. 25, 1904) disposed of to another corporation in which defendant was a stockholder and which six months thereafter (May 3, 1905) was adjudicated a bankrupt; that defendant had executed the note in suit October 25, 1904, and that subsequent to May 3, 1905, he secured' an allowance in his favor of a like amount against the bankrupt’s estate and had received a dividend thereon, amount unknown. It is also alleged that defendant’s agent in April, 1905, being vested with authority to act for defendant respecting the note in suit, acknowledged its validity. It is alleged that by reason of such acknowledgment and defendant’s securing the allowance of his claim in bankruptcy, plaintiff refrained from proceeding against the estate of the bankrupt.

In' this state of the case defendant’s motion for judgment on the pleadings was sustained and plaintiff appealed.- It is contended the note is valid at least in part and, if that he not true, defendant is estopped to assert its invalidity.

I. The reply, in effect, admits plaintiff was transacting business in Missouri in violation of the statute [Secs. 3039, 3040, R. S. 1909] in so far as the business of its Kansas City branch office was concerned and it follows its business was, to that extent at least, unlawful and contrary to State policy as declared by the statutes mentioned. (Zinc and Lead Co. v. Zinc Mining Co., 221 Mo. 7; Tri-State Amusement Co. v. Amusement Co., 192 Mo. 404) and every contract into which it entered in furtherance of that business was void. Plaintiff’s compliance with the statute in December, 1905, did not put it in any better position. A very substantial part of the consideration of the note in suit accrued from unlawful transactions. Plaintiff contends, however, that the part of that consideration which accrued from transactions with its home office was lawful and a recovery in this case to the extent thereof should have been permitted. This contention cannot be maintained. In case of a partial simple failure of consideration such a rule is applied, but when a part of the consideration of a note is illegal the whole is infected and the entire note vitiated. This rule has been often recognized by the courts of this State. [Sumner v. Summers, 54 Mo. l. c. 346; Cheltenham Fire-Brick Company v. Cook, 44 Mo. 29; Sawyer v. Sanderson & Thomas, 113 Mo. App. 233; Bick v. Seal, 45 Mo. App. 475.] The doctrine is universal. Mr. Daniels, in his work on Negotiable Instruments (5 Ed.), vol. I, Sec. 204 (3) says: “When the defense is founded on illegality of consideration it is to be distinguished from a defense on the ground of a want or failure in the consideration by this peculiarity — that a partial illegality vitiates the bill or note ‘in toto’ while the partial want or failure of consideration only vitiates it ‘pro tanto.’ ” [See, also, 1 Parsons’s Notes and Bills, p. 217; 2 Chitty on Contracts (11 Ed.), p. 973; Bishop on Contracts (2 Ed.), Sec. 487; First National Bank v. Miller, 235 Ill. l. c. 143; Arnett v. Wright, 18 Okla. l. c. 341, 342; Oakes v. Merrifield, 93 Me. l. c. 301; McTighe v. McKee, 70 Ark. l. c. 294; O’Connor v. Kleiman, 143 Ia. l. c. 435; Wadsworth v. Dunnam, 117 Ala. 661.]

Considerations arising out of transactions opposed to good morals, public policy, the policy of the law and those violative of an express or implied statutory prohibition (Mr. Bishop’s- classification) are equally within the rule, as is made clear by the foregoing authorities and these: Sprague v. Rooney, 104 Mo. l. c. 358, et seq.; Woolfolk v. Duncan, 80 Mo. App. 421; State v. Wilsbn, 73 Kan. 343; Covington v. Threadgill, 88 N. C., l. c. 188, 189; Parsons on Contracts, pp. 380, 381.

In Douthart v. Congdon, 197 Ill. 349, the rule was applied in- a case in which a broker moved for the allowance against the payor’s estate of a note, part of the consideration of which was for broker’s commissions. The payee had procured no broker’s license as required by an ordinance of the city of Chicago. Recovery was denied by reason of the partial illegality of the consideration. Mr. Bishop in his work on Contracts, Secs. 547, 548, says: “The rule is, that, when a statute forbids a particular business generally, or to unlicensed persons, any contract made in such business by one not authorized, or made with a view of violating the statute, is void. Within this principle, is a sale of goods to be used in the business, from one who has knowledge of the proposed use.”

The note in the present case falls within the rule stated, the reply making it clear that no other consideration moved to defendant save the sale of the goods and disclosing that at least that part of the consideration arising from sales through the Kansas City branch office was illegal.

II. If the mere fact of entering into a contract or executing a note payable to a foreign corporation doing business in this State in violation of the statute constituted an estoppel the statute would be a nullity. [In re Comstock, 3 Sawyer, 1. c. 228.] The real contention is, however, that defendant’s securing the allowance in bankruptcy and receiving a dividend out of the bankrupt estate constituted an estoppel. It is insisted in this connection that the part of the consideration of the note arising out of sales (to the now defunct corporation) under the Michigan contract was and' is valid. ' This insistence forms the real basis of the whole contention as to an estoppel. Let it be conceded (but not decided) that plaintiff’s position in this respect as to the partial validity of the consideration be correct and also that defendant is estopped to deny his liability for that part-of the consideration arising out of lawful transactions in case suit is brought against him on his agreement to pay of which the note was the fruit. Nevertheless, 'as to that part of the consideration which is illegal, plaintiff’s position was not changed, either by its agreement with defendant or his execution of the note. It could not have recovered, as to that, on its contract with the corporation and defendant had no legal right to any allowance against the bankrupt estate on the assignment to him of that illegal contract. As to that part of its claim plaintiff is in no worse condition, so far as its rights on the contract attempted to be assigned are concerned, than when it first accepted the note from defendant. It saw fit to substitute defendant as its debtor in the stead of the corporation which it claims contracted the debt. In so far as the debt was valid and enforceable, as such, against the corporation, defendant is as much liable to plaintiff on the agreement as he ever was. In so far as the debt arose from illegal transactions plaintiff could not have recovered against the corporation and to that extent, also, the agreement with defendant was illegal and void. It is conclusively presumed to have known of the illegality of the business it did in Missouri through its branch office, the invalidity of its' account based on that business and the invalidity of its agreement with defendant to pay such account. Spellman’s alleged recognition of the validity of the note amounted to nothing nor would a like recognition by defendant have amounted to more (Stanard v. Sampson, 23 Okla. 1. c. 33, et seq.; Kennedy v. Welch, 196 Mass. 1. c. 595, 596), there being a broad distinction between the power to ratify a contract in securing which mere personal rights have been infringed and those which are violative of public policy or positive law. [In re Comstock, supra, 1. c. 228, 229; Mfg. Co. v. Knapp, 101 Minn. 1. c. 438.] “In such case there can be no waiver. The defense is allowed not for the sake of the defendant, but of the law itself.” [Sprague v. Rooney, supra.] It is not specifically alleged, for that matter, that any dividend was allowed and paid on that part of the account which was based upon unlawful transactions and there can be no presumption to that effect. ■

Whatever plaintiff’s rights may be to recover from defendant in a different action an amount equal to that part of the consideration of the note it contends is valid, the estoppel, if estoppel there be, does not validate the illegal part of the consideration of the note' and the note itself is void for illegality. The illegal consideration is still in the note. In Osborne v. Shilling, 74 Kan. 1. c. 677, it was said:

“Another reason why the defendants are not es-topped is that the statute was enacted for the benefit of the general public and its purpose cannot be bargained away by individuals. The regulation of foreign corporations is for the purpose of subjecting them to inspection, so that their condition, standing and solvency may be known — the same sort of inspection to which domestic corporations are subjected. Another purpose likewise intended for the protection of the public was to subject foreign corporations to the jurisdiction of the courts of the State; and an incidental purpose was to provide revenue. Involved in the statute are these public considerations, which are of greater consequence than mere individual rights. It was not for defendants’ sake, therefore, that the provision was made, but it is a rule of State policy of which the defendants may incidentally take advantage. ’ ’

III. The question whether a corporation which is violating the statute prohibiting foreign corporations from transacting business in the State without complying with its requirements can recover in our courts on contracts made in the transaction of interstate business While violating the statute is not necessarily presented by this record, in the view taken of the case.

The judgment is affirmed.

Boy, 0., concurs.

PER CURIAM.

— The foregoing opinion of

Blaik, C., is adopted as the opinion of the court.

All the judges concur.


author: ROT, C. PER CURIAM.

text:
    THE STATE v. WILLIAM DUDLEY, Appellant.
    Division Two,
    July 5, 1912.
    1. INFORMATION: Larceny of Two Articles: Charging Value. The fact that an information charges the larceny of two separate articles without stating the value of each does not invalidate the information when the aggregate value is stated.
    2. JURORS: Qualifications: Conversation with Prosecuting Witness. A juror is not incompetent because he has talked with the prosecuting witness about the arrest of the defendant but has heard none of the facts as to his guilt or innocence, and has formed no opinion.
    3. REMARKS OF COUNSEL: Forfeiting Bond: No Exception. The statement by the prosecuting attorney, in a prosecution for larceny, that defendant had forfeited his bond and that a requisition had been issued for him, is not error warranting reversal, where the defendant’s objection to the statement was sustained and the jury instructed to disregard it, and there was no exception.
    4. EVIDENCE: Crimina! Law: Cross-Examination. Where defendant testified that he bought the buggy which he is charged with having stolen, while traveling on the road, cross-examination as to the kind of horses he was driving on this same journey and how they were shod, is proper.
    5. INSTRUCTIONS: Criminal Law: Reasonable Doubt. In a prosecution for grand larceny, an instruction upon reasonable doubt is full and clear which tells the jury in effect that the burden rests upon the State, etc., “but a doubt to authorize an acquittal on that ground alone should be a reasonable doubt and one fairly arising from the evidence considered as a whole; the mere possibility that the defendant may be innocent will not warrant you in acquitting .him on the ground of reasonable doubt.”

      6. -: -: Presumption of Innocence. In a prosecution for grand larceny tlie instruction asked by tbe defendant on tbe presumption of innocence should have been given, but, where the jury was fully instructed on reasonable doubt, such refusal was not error requiring reversal.
    Appeal from Dunklin Circuit Court. — Hon. W. S. C. Walker, Judge.
    Aeeirmed.

      W. G. Bray and G. P. Hawkins for appellant.
    (1) The information is bad for the reason that it charges defendant with wrongfully taking a buggy ánd also set of harness, distinct and separate articles, without stating the value of each, but states the collective value. State v. Koplan, 167 Mo. 298; State v. Ravencraft, 62 Mo. App. 109. (2) The court erred in refusing to excuse the juror, who had talked with the prosecuting witness. State v. Tomasitz, 144 Mo. 86. (3) The court erred.in permitting the prosecuting attorney, in his opening statement to the jury, to state that the defendant, at the last term of court, forfeited his recognizance, and that a requisition had been issued for him. State v. Armstrong, 167 Mo. 257. (4) The court erred in allowing the prosecuting, attorney, over defendant’s objections to cross-examine the defendant about matters not brought out in his direct examination. R. S. 1909, Sec. 5242; State v. McGraw, 74 Mo. 573; State v. Porter, 75 Mo. 171; State v. Troutt, 36 Mo. App. 29; State v. Grant, 144 Mo. 56; State v. Hawthorn, 166 Mo. 229; State v. Kyle, 177 Mo. 569; State v. Fullerton, 90 Mo. App. 411; State v. Bell, 212 Mo. 111.

      Elliott W. Major, Attorney-General, and Campbell Cummings, Assistant Attorney-General, for the State.

      (1) The information charges grand larceny of a buggy and harness of the aggregate value of one hundred dollars, the personal property of the prosecuting witness, which appellant did feloniously steal, take and carry away. The information is sufficient and fully charges but one offense. R. S. 1909, See. 4535. It is a proper allegation of the value of the property stolen. State v. Koplan, 167 Mo. 298; State v. O’Connell, 144 Mo. 387; State v. Wagner, 118 Mo. 626. (2) Appellant objected to Juror Redman because he held an unimportant conversation with the prosecuting witness relative to effecting the arrest of appellant. The juror stated no facts in the case were detailed to him at the time, and that he had no opinion of the guilt or innocence of appellant, and that he had never thought anything more about it. Appellant has failed to cite any cases holding that the acceptance of such a juror was error, and we submit none such can be found. Moreover, such ground is not in the motion for new trial, nor is the juror’s name set out therein. State v. Tomasitz, 144 Mo. 86; State v. Shipley, 171 Mo. 551. (3) Appellant complains of statement of prosecuting attorney that appellant forfeited his bond, and that a .requisition was issued. The argument or statements, of the prosecuting attorney are not set out in the bill of exceptions, but only appellant’s objection thereto and the court’s ruling thereon. Still, as the court sustained the objections and instructed the jury to disregard them, and no request for a reprimand was made, and no exceptions taken to the insufficiency of the instructions given to the jury, or to the court’s ruling on appellant’s objections, and, in short, that no exception' whatsoever was saved, the alleged error is not now available, as the trial court cannot be convicted of error for having done all that appellant asked. State v. Kullman, 225 Mo. 625; State v. Chenault, 212 Mo. 132; State v. Murphy, 201 Mo. 691; State v. Mc Mullin, 170 Mo. 608; State v. Armstrong, 167 Mo. 257.
   ROT, C.

— Defendant was convicted of grand, larceny in the circuit court of Dunklin county, and sentenced to two years in the penitentiary, and has appealed.

The information charged him with the larceny of “one buggy and one set of leather harness, both of the value of one hundred dollars,” on October 8, 1910. Pie was living on a farm near Senath, in Dunklin county. His father lived near Manila, Arkansas, about sixteen miles south of Senath.

The defendant had purchased eighty acres of unimproved land covered with timber and brush near his father’s, and had cleared away a place to build a house. He had bought lumber in Senath and hauled it in a wagon to his farm. He made a trip with a load of lumber leaving Senath about eight o’clock on Saturday night, October 8, 1910, and passed by the buggy shed of Ben Vardell, which was on the side of the road about an eighth of a mile from Vardell’s house. The evidence tended to show that there were tracks of horses, similar to the tracks of defendant-’s horses, in front of the buggy shed the next morning, and tending to show that defendant’s team had stopped there and that the buggy tracks indicated that it had been tied behind the wagon, and the tracks were such as to show that the buggy had in that way been taken to defendant’s place in Arkansas. It was found in his possession about sixty rods from the public road behind some bushes. Vardell’s harness was in the buggy. The collar was missing. ' '

The defendant testified: That he did not take prosecuting witness’s buggy, but that on the Sunday morning (October 9, 1910), at the State line, or about a mile and a half beyond, he had bought it from a man named Carter whom he met about daylight, for the sum of thirty-five dollars; that he had known Carter off and on for three years, as his business was that of trading horses. He described Carter as a small man with red hair. On cross-examination appellant testified that he had left his home at Senath on Saturday night about eight o’clock, going straight south, passing the prosecuting witness’s home and buggy shed, making one continuous trip from the -time he left home until he bought the buggy the next morning that the place where he bought the buggy was about thirteen miles from his home, and that it took him from eight o’clock the night before to travel from Senath to one and three-quarter miles below the State line; that his horses were between twelve and fourteen hands high, were shod with calks (“corks”) behind and no toes; that he drove on from the place where he bought the buggy to his place, where he unloaded the lumber and came up to his father’s,' about nine or ten or eleven o ’clock a. m.; that it was some ten or twelve miles from the place where he bought the buggy to the place where he unloaded the lumber, four miles south of Manila. On being asked why he did not take the buggy on down to where he unloaded the lumber, he answered, because there were logs scattered around there until he could not get the buggy out of the road, and where he left the buggy it was cleared out and convenient' to get in; that it was an open place with no bushes, although he could not explain why the men could not see the buggy as they passed on the road until he called their attention to it. The place where he left the buggy was about three miles from his father’s, and that he had not left it at his father’s because there was no room there for it, although he had stopped there on his way down. He further testified that Carter overtook him on the road; that he was driving a team of light sorrels to this very buggy; that when he sold him the buggy, he took them out, and that he did not know there was any harness in the buggy at tbe time; that Carter did not say where he had gotten the buggy and that he paid him thirty-five dollars for it. He further testified that he had known Carter at Senath; that he had traded horses with him several times; that there was no one with him when he bought the buggy, and that he had never seen him since; that the last time he had seen him was the fall before that; did not know where Carter lived, and, when asked if anybody was traveling with him, he answered, “No, he seemed to be by himself.” He further stated that he made no effort to find him. He also stated that nobody assisted him in placing the buggy where it was found.

The prosecuting witness testified that the defendant told him that he got the buggy up the road, and that when asked where it was, he said, “it was down the road a piece,” and that defendant also said, “I am here among strangers and I would like for you to take the money and bring the buggy back providing it belongs to you.”

Defendant, in his direct testimony, stated he bought the buggy on the State line, on Sunday morning, on the road where he was traveling from his house at Senath. On cross-examination he was asked about the kind of horses he was driving and how they were shod. There was an objection on the ground that it was a matter not gone into on the direct examination. The objection was overruled and exception taken.

One' of the jurors on his voir dire stated that he had talked with the prosecuting witness about the arrest of defendant, that nothing was said about the facts in the case and that the juror had formed no opinion, and had thought no more about it. Defendant’s challenge of the juror was overruled.

In his opening statement to the jury the prosecuting attorney stated that the defendant at the previous lerm of the court had forfeited his bond and that a requisition was issued for him. There was an objection by defendant. Tbe court sustained the objection and told the jury not to consider the statement. There was no request for a rebuke of the prosecuting attorney, and no exception.

I. The fact that the information charges the larceny of two separate articles without stating the value of each does not invalidate the information when the aggregate value is stated. [State v. Koplan, 167 Mo. 298; State v. O'Connell, 144 Mo. 387.]

II. The challenged juror was not incompetent. He had talked with the prosecuting witness about the arrest of the defendant, but had heard none of the facts as to his guilt or innocence, and had formed no opinion. It was held in State v. Riddle, 179 Mo. l. c. 294, that when a juror had heard a part of the evidence of one witness, but had formed no opinion, he was a competent juror.

III. We consider the statement made by the prosecuting attorney that defendant had forfeited his bond and that a requisition had been issued for him as proper. It tended to show flight on the part of the defendant, which is “evidence of guilt and of a guilty conscience.” Besides, the defendant’s objection was sustained and the jury instructed to disregard the remarks, and there was no exception. Under the circumstances there was no error. [State v. Kullman, 225 Mo. l. c. 632.]

IY. The cross-examination of the defendant as to the kind of horses he was driving and how they were shod was germane to the subject-matter of the direct examination and was proper. He had testified that he had bought the buggy while traveling on the road from his house at Senath. The particulars of that journey were proper matter for cross-examination.

In the case of State v. Bell, 212 Mo. l. c. 122, cited by appellant, the direct testimony was as to one journey and the cross-examination as to another.

Y. The instruction given on the subject of reasonable doubt was full and clear.

The defendant asked an instruction on the presumption of innocence and it was refused. It should have been given, but such refusal is not reversible error where the jury has been fully instructed on reasonable doubt. [State v. Maupin, 196 Mo. 164; State v. Kennedy, 154 Mo. l. c. 289.]

All the other instructions asked by defendant were fully covered by those given.

We find no reversible error in the record and the judgment is affirmed.

Blair, G., concurs.

PER CURIAM.

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

All the judges concur.


text:
    HARFORD WILLIAMS and LUCILE WILLIAMS, Minors, by their Curator, GEORGE H. BUNTING, v. CHICAGO, BURLINGTON AND QUINCY RAILROAD COMPANY, Appellant.
    Division Two,
    July 5, 1912.
    APPEAL: Constitutional Question: Jurisdiction of Probate Court: Curators. The guestion'whether the facts in this case warranted the prohate court in appointing the particular curator who brought this suit is not a constitutional guestion giving the Supreme Court jurisdiction of the appeal. It does not concern the probate court’s jurisdiction to appoint curators under Sec. 34, Art. 6, of the Constitution.
    Appeal from Jackson Circuit Court. — Hon. T. J. Seehorn, judge.
    Transferred to Kansas City Court of Appeals.

      Warner, Bean, McLeod & Timmonds and O. N. Spencer for appellant.

      Bees Turpin for respondents.
   BLAIR, C.

— This appeal was taken in 1908 from a judgment for $7,000 rendered against appellant in the circuit court of Jackson county in an action for damages for the death of Louis Williams.

The amount involved was sufficient to authorize the appeal to this court at the time the appeal was taken hut for the reasons given in Schwyhart v. Barrett, 223 Mo. 497, does not, of itself, now warrant the retention of jurisdiction of the case.

' It is suggested by respondent’s counsel, however, that since the answer and briefs of counsel for appellant question the jurisdiction of the probate court to appoint the curator who instituted this action for the minor .respondents, the construction of Sec. 34 of Art. 6 of the Constitution of the State is involved and jurisdiction is thereby conferred. This contention cannot be upheld. There is no question in the record as to the existence of jurisdiction in the probate court to appoint curators. The insistence in this case is merely that the facts did not warrant that court in appointing a curator in this instance. No constitutional question was raised o.r suggested in the trial court. The case is transferred to the Kansas City Court of Ap>peals.

Boy, G., concurs.

PER CURIAM.

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

All the judges concur.