author: VALLIANT, J.

text:
    ANGELINE E. PULLIS v. WILLIAM SOMERVILLE, Appellant.
    Division One,
    March 31, 1909.
    1. RECORD MATTER: Negative Showing: Referee's Report. The issue of whether or not the referee took the oath required by the statute is not raised by a mere recital in appellant’s brief that “the record does not show that the referee ever took the oath of office” and by a short transcript and abstract in which there is no mention of the referee’s oath. A statement that “the record does not show” does not mean that the record of the circuit court does not show the oath was not taken. In such case the duty is upon the appellant to show in some unequivocal way that the record in the circuit court fails to show the essential fact.
    2. -: -:-: Filing. Where the referee took and subscribed the oath before the clerk and left it with him, it was filed. The indorsement of “filed” thereon by the clerk is only evidence of the filing, and is not essential to the actual fact of filing.
    3. INTEREST:. Loan or Conversion: Accounting. Plaintiff collected $33,015.16 life insurance money on the death of her husband, and placed it in the hands of her brother, the defendant.’ She says it was loaned to him at six per cent interest. He says it was placed in his hands to be by him held without interest and invested for her. He gave her no note or memorandum or receipt. He says he deposited it in the treasury of a corporation of which he was president, to his own credit, and it became mingled with his own funds; he checked against it as his own money, and sometimes his account with the company was overdrawn. Held, that, upon his own testimony, he appropriated the money to his own use, and is chargeable with interest.
    4. ASSIGNMENT: Authority to Collect: Credit in Accounting. Defendant gave plaintiff a power of attorney to collect his share of an estate in Ireland, but gave her no assignment, though requested to do so, but in his answer to her suit for an accounting pleaded that he had “assigned to her by way of power of attorney” that interest, and in his testimony he says he gave her the power of attorney to collect his share of the estate and keep it for herself. Held, that, although the power of attorney, standing alone, was not equivalent to an assignment, yet taken in connection with his plea and his evidence, and the allowance to her of the amount in the account and her acquiescence therein, is sufficient; and although plaintiff has never collected the amount and might have objected to the allowance, the judgment of the circuit court was a transference of the fund to her, and as she acquiesced in the ruling of the referee, it will not be disturbed upon the insistence of defendant that the claim is now collectible, and there was no assignment and he should be permitted to collect it.
    5. ACCOUNTING: Investment: Worthless Stock: Trust Fund. Even if defendant was plaintiff’s trustee, having her funds in his hands to be invested according to his own judgment (which is more than the evidence shows), his investment of them in the stock of an insolvent mining company, by the transfer to her of his own stock, without her knowledge, was an abuse of the trust, and the item should not be allowed him as a credit when she sues him for an accounting.
    6. -: -: Incumbered Lands: Unaccepted Deeds. Deeds to land upon incumbered real estate, tendered but not accepted by plaintiff, should be rejected in a settlement of the account.
    7. -." Rent: Implied Agreement to Pay: Married Woman. Where plaintiff was induced by defendant to move into a country place with a view to purchasing it if it pleased her taste, and defendant testified that there was no express agreement to pay rent, that it was only an experiment to see if his sister would be pleased to buy the place in payment of a debt which he owed her, but that it was his understanding that if she did not buy she would pay rent, and when asked why he did not mention the matter of rent earlier said it was because she was his sister, there is no implied agreement to pay rent from the mere occupancy, and the claim should be rejected in an accounting between them. Besides, even if an implied agreement to pay rent arises from the occupancy, as plaintiff was at that time married, it was the implied agreement of her husband as the head of the family.
    8. -: Unjust Allowance: Ño Exception. An unjust allowance made to appellant, to which respondent filed no exception, cannot be corrected on appeal; but it may be considered in connection with appellant’s insistence that the amount should have been larger than was allowed.
    9. -; — : Reference: Separate Findings. A referee is not required to make a separate finding as to each item of an exhibit of over 300 items attached to the petition as a part thereof, where the whole exhibit is pleaded in a lump.

      10. -: Acceptance of Deeds: Testimony as to Examination of Title. Where defendant is sued for an accounting, and sets up as an item of credit certain incumbered property which he had caused to be conveyed to plaintiff, the deeds to which she asserts she did not accept, testimony of her attorney that, when the deeds were tendered, he examined the titles and found that the lots were incumbered, and that the tendered deeds passed the title from defendant through an insolvent to plaintiff, and that he had consulted a guarantee company to ascertain if it would guarantee the title, etc., and that thereupon he advised plaintiff not to accept the deeds, is competent, not for the purpose of showing that the deeds did or did not convey good title, but to show that plaintiff did not accept the.deeds and did not act capriciously in refusing to accept them.
    11. -: Worthless Stock: Testimony of Worthlessness After Transfer. Where defendant transferred worthless stock of an insolvent mining company to plaintiff and seeks to obtain credit in her suit for an accounting at the face value of the stock as an investment for her, testimony tending to show thereafter the company’s increased financial troubles up to the time she was informed of the transfer, may not be necessary, but it is pertinent as bearing on the question of the good faith of defendant in trying to impose his own worthless stock on her.
    12. -: Compound Interest: No Exception. Exceptions that “referee has erred in all his calculations of interest” and that “the referee has erred in his method of calculating interest, the same being contrary to the law of this State,” refer only to the method of calculation, and does not raise the point that appellant has been charged with compound interest, and as no other exception nor the motion for a new trial raises the question of compound interest any error in that regard is not for review on appellant’s assignment.
    13. -: -: On Money Converted. Where defendant’s confiding sister placed money in his hands to be invested according to his own judgment and he converted it to his own in- . terest, he is chargeable with compound interest. The statute (Sec. 3711, R. S. 1899) which allows compound interest only on an express written contract therefor, does not apply to an accounting of a derelict trustee.
    14. -: -: Error on Face of Pleadings. Plaintiff can recover only on the case made by her own pleading and proof, not upon that made by her adversary. So that where the referee charged the defendant interest on an open account for money placed in his hands as a loan, with annual rests, which constituted compound interest, the error, though not raised in the circuit court, will be corrected on appeal, but not at the cost of plaintiff.

      15. -: Interest: Method of Calculation. The rule for counting interest in case of partial payments as laid down in Riney v. Hill, 14 Mo. 500, is approved.
    16. -: -: Payments Made Through Year. Where there were payments made by defendant at various dates in a year, but the referee does not give the dates, the Supreme Court, in trying to , correct the error in calculation without the expense of a re-reference, will consider all the payments as having been made on the first of January of that year.
    Appeal from St. Louis City Circuit Court. — Eon. D. D. Fisher, Judge.
    Affirmed.

      E. A. Lo&oy for appellant.
    (1) The referee erred in his finding that plaintiff did not accept deeds to the two Westminster Place houses. (2) The referee’s method of calculating interest is illegal. Darling v. Potts, 118 Mo. 528. Especially as he has allowed compound interest which is not lawful unless specially contracted for in writing. R. S. 1899, sec. 3711; Storage Co. v. Glasner, 169 Mo. 46; Riney v. Hill, 14 Mo. 500; Stoner v. Evans, 38 Mo. 461; Gas Co. v. St. Louis, 82 Mo. 202, 11 Mo. App. 78; Way v. Priest, 87 Mo. 182; State ex rel. v. Donegan, 94 Mo. 70; State ex rel. v. Shaw, 1 Mo. App. 519; Poulson v. Collier, 18 Mo. App. 605; James v. Hiatt, 80 Mo. App. 46; Call v. Moll, 94 Mo. App. 391. Even where interest is by contract payable annually, it cannot be compounded. Stoner v. Evans, 38 Mo. 461; Williams v. Carroll Co., 167 Mo. 16. (3) The referee erred in deducting defendant’s share of Sophia Crawford’s estate, because: (a) Appellant never assigned same by formal instrument of writing, (b) Appellant flatly refused to execute same when requested to do so several times, (c) Respondent disdainfully refused during the hearing to recognize the assignment because it was speculative and valueless, (d) Such an estate is not assignable at common law which prevails in Ireland, the locus quo of this property. (4) Referee erred in not allowing defendant credit for $5,000' value of Andes Mining Stocky because: (a) He had in fact assigned same to her shortly after company was organized, (b) He delivered certificates for same to her attorney promptly on latter’s request therefor in 1900 in part payment. .(c) Same was worth par (if not more) when he assigned it. (d) It was not a stock-jobbing scheme. (5) Referee erred in not making a special and distinct finding for or against allowance of each item of credit claimed .by defendant. State ex rel. v. Peterson, 142 Mo. 534; Darling v. Potts, 118 Mo. 528; Edwards v. Garnhart, 56 Mo. 84. (6) Referee erred in not allowing defendant interest on amounts paid by him to plaintiff. The rule is either interest on both sides of the account or none to either side except on the balance when ascertained. Darling v. Potts, 118 Mo. 526. (7) Referee erred in not charging plaintiff for use and occupation of the country place she occupied for one year. R. S. 1899', sec. 4113; O ’Fallon v. Boismen, 3 Mo. 405; Warne v. Prentiss, 9 Mo. 544; Edmonson v. Kite, 43 Mo. 176; Edwards v. Electric Co., 76 Mo. App. 618. (8) The record does not show that the referee took the oath in writing mandatorily required by statute. R. S. 1899, sec. 703.

      Rassieur, Schnurmacher & Rassieur for respondent.
    (1) (a) Although respondent’s abstract shows that the referee took the oath required by the statute, it is not necessary that such fact should appear from a recital in the record. In the absence of proof or a statement to the contrary appearing in the bill of exceptions, it will be presumed that he duly complied with the provisions of the statute. Green v. Walker, 99 Mo. 73; Hemelreich v. Carlos, 24 Mo. App. 271; (State v. Pollard, 14 Mo. App. 583. (b) If the referee had not been sworn, appellant would not be in a position to complain, since such failure to comply with the statute would have been a mere irregularity, and was waived by appellant’s taking part in the proceeding before the referee, offering testimony and examining witnesses, all without objection. Bissel v. Warde, 129 Mo. 449; State v. Hope, 100' Mo. 355; State v. D'avis, 186 Mo. 533. (c) This claim of error was not made in the proceedings before the referee, nor was it made in appellant’s exceptions to the referee’s report, in his motion for new trial or in his motion in arrest; it is therefore now too late to raise the question for the first time on this appeal. Carter v. Prior, 78 Mo. 224; Hemelreich v. Carlos, 24 Mo. App. 271; City v. Excelsior Brewing Co., 96 Mo. 677; Gorham v. Railroad, 113 Mo. 408; St. Louis v. Sieferer, 111 Mo. 662. (2) (a) The referee was not required to make a special and distinct finding on each of the 350 items forming the credit of $28,611.27, claimed by appellant in the first defense pleaded in his answer. Caruth-Byrnes Hdw. Co. v. Wolter, 91 Mo. 489. (b) In the absence of any statute requiring specific findings, a general finding will be sufficient, unless the order of reference directs otherwise. Caruth-Byrnes Hdw. Co. v. Wolter, 91 Mo. 489; Odd Fellows v. Morrison, 42 Mich. 521. (c) A referee is only required to make separate findings where there are several distinct causes of action stated in separate counts of the petition, or counterclaim. State ex rel. v.- Peterson, 142 Mo. 535. (3) (a) The method of calculating interest adopted by the referee was correct. Frost v. Winston, 32 Mo. 494; Williams v. Pettigrew, 62 Mo. 472; In re Murdoch & Dickson, 129 Mo. 499; In re Estate of Camp, 74 Mo. 192. (b) Where a trustee mingles the money of the trust estate with .his own, and uses it for his own benefit and in his own affairs, and neither does, nor can, render a separate account of the estate and its earnings, he is properly chargeable with legal interest computed with annual rests. Perry on Trusts, sec. 471; Bobb v. Bobb, 89 Mo. 421; Williams v. Pettigrew, 62 Mo. 472; Cruce v. Cruce, 81 Mo. 676. (c) The rule for computing interest on legal demands, upon which partial payments have been made, does not apply to trustees’ accounts. Cruce v. Cruce, 81 Mo. 691. (4) The referee did not err in allowing appellant credit for his interest in the Sophia Crawford estate. Appellant, in his answer, pleaded that he had assigned this interest to respondent, and he is bound by the allegations of his pleading. Oglesby v. Railroad, 150 Mo. 177; Kuhn v. Weil, 73 Mo. 215; Bruce v. • Sims, 34 Mo. 251; Bensieck v. Cook, 110 Mo. 182; Wilson v. Albert, 89 Mo. 546. (5) Appellant’s claim to a credit of $5,000, the alleged value of the mining stock which he owned, and which on February 22, 1898, he transferred on the books of the company to respondent, without her knowledge or consent, was properly rejected by the referee and the circuit court, (a) Appellant pleads in his answer that this sale was made at the “special instance and request” of respondent, but in his testimony he admitted that he had made this transfer without respondent’s consent or knowledge, and that respondent did not learn of it until a short time prior to the institution of this suit, (b) Appellant, as trustee of the fund in his possession, had no power or authority to invest it in speculative stocks or in a business venture, the success of which had not become established. The investment was a gross breach of trust, and he is liable for all loss occasioned thereby. Perry on Trusts, sec. 454; Kimball v. Reding, 31 N. H. 374; King v. Talbot, 40 N. T. 85; Drake v. Crane, 127 Mo. 106; Garesche v. Levering Inv. Co., 146 Mo. 445. (c) Where a trustee makes an investment in his individual capacity and fails to indicate promptly that the investment is on account of the trust in his charge, he will not he heard, after a loss or depreciation of the investment, to say that the investment was made in his representative capacity. State ex rel. v. Roeper, 82 Mo. 63; White v. Sherman, 168 111. 589; Perry on Trusts, sec. 452.
   VALLIANT, J.

This is an action to recover moneys loaned by plaintiff to defendant. The first item mentioned in the petition is $3,500, a legacy under the will of Jason Crawford bequeathed to defendant in trust to pay the interest to testator’s sister, Elizabeth Somerville, during her life, and the principal to the plaintiff at the death of Elizabeth; Elizabeth died September 22, 1883, and plaintiff then being entitled to the principal loaned it to the defendant at his request on the agreement that he would pay it to plaintiff on demand and eight per cent interest per annum. The petition also states that in November, 1894, she loaned defendant $25,000 which she at that time received from the Equitable Life Assurance Society of New York, $5,000 from the Massachusetts Mutual Life Insurance Company, and $3,015.16 from the Mutual Benefit Life Insurance Company. The petition admits the payment to her in 1893 of $1,400 on account of the loans and the same amount in 1895, and avers that in 1895, about four months after the life insurance moneys were loaned as above stated, defendant rendered the plaintiff an account of his indebtedness to her showing the amount due her for principal and interest $34,500, which sum he agreed and promised to pay on demand with interest at six per cent per annum. The petition then states that from November, 1894, up to and including September, 1899, the defendant paid plaintiff monthly, on account of the indebtedness, various sums ranging from $150 to $200 per month (she is unable to state it more accurately) and not any more. The prayer of the petition is for a judgment fox' $34,500’ and interest from —■ November, 1894, less such sums as the court may find the defendant may have paid on the account.

The answer is first a general denial, then follows an admission of having received from plaintiff $32,500 which it states defendant was to keep and invest -for plaintiff. Then there is a statement that he paid out for her from time to time sums aggregating $28,611.27, of which he files a list nxaxked “Exhibit A,” and in addition thereto that he paid out for rent for her $1,000 a year from 1895 to 1900 inclusive, total $5,000; that in 1898 at her request he delivered to her fifty shares of stock of the Andes Mining Company for which he paid $5,000; that in 1899 he paid her amounts collected by him as rent for the house at Westminster Place in the city of St. Louis which he had purchased, $100 per month, $1,200; that in 1900 he deeded to her two houses in Westminster Place subject to mortgages, the equity in which by agreement was fixed at $12,000; that in 1900 “he assigned to her by way of power of attorney” to collect a portion of an estate in Ireland, valued at $4,000; that he gave sums to her sons at her request from time to time and paid out expense money for moving her family to New York and money sent her when she was in Europe, aggregating $1,000. Total payments alleged to have been made, $56,811.27, “largely in excess of what was received by him from her, for which with interest he prays judgment. ’ ’ The reply joins issue on all of those averments.

The suit was filed to the December Term, 1900, of the St. Louis Circuit Court; at the February Term, 1901, March 18, defendant filed his amended answer, as above, and by stipulation filed, the cause was on that day referred to George E. Smitb, Esquire, to try all issues and report. The trial was long, running through several years apparently, and the referee filed his report January 15, 1906. The report is full, covering all the disputed facts, and covers 15 printed pages. The referee in the conclusion of his report finds that there was a balance due the plaintiff at that date, January 15, 1906, of $35,167.98, for which sum with interest at six per cent per annum from that date he recommended that judgment in the plaintiff’s favor be rendered. The defendant filed thirty-one exceptions to the referee’s report, which were by the court considered and overruled; then followed motions for a new trial and in arrest, which were also overruled ; final judgment for the plaintiff in conformity to the referee’s report was rendered, and the cause comes here on defendant’s appeal.

I. Before entering upon a consideration of the case on its merits we will notice a point made by appellant which if sustained would annul the whole trial and send the cause back to be tried all over again.

The point as stated in appellant’s brief at page 139 is: “The record does not show that the referee ever took the oath of office mandatorily required by statute, Revised Statutes 1899, section 703, which invalidates his report and findings.”

The cause comes here on a short transcript, supplemented by an abstract of the record filed by appellant., in which there is no mention of the referee’s oath or any allusion to that subject. Appellant’s statement in his brief is that “the record does not show that the referee ever took the oath.” If by the use of those words appellant means to say that neither the short transcript nor the abstract filed by him shows that the referee took the prescribed oath, the statement is correct, but if he seeks to convey the idea that the record in the circuit court does not show that fact then he should have so stated. The record in this court is one thing, that in the circuit court is another; a fact may be omitted in so much of the record as appellant sees fit to bring here, yet appear in the circuit court record. Therefore, a party complaining here that a certain act, which he deems 'essential to the validity of the proceeding in the circuit court, was not done, must show us either by producing a full transcript of the record of the circuit court or else show by his abstract, in some unequivocal form, that the record in the circuit court fails to show that ■fact. Appellant does not say that the record in the circuit court does not show that the referee took the oath, nor does his abstract in terms purport to show what the record in the circuit court shows on that subject, but he only says that “the record” does not so show, by which we understand that the record which he has brought here, that is, the short transcript and his abstract, do not so show.

What we have just said is well illustrated by the facts of this case; after appellant had presented his brief containing this point, respondent, as she had the right to do, filed a counter abstract in which, with other matters/she has set out the oath of the referee in due form taken before the clerk on the next day after his appointment and before he began the trial. Section 813, Revised Statutes 1899, gives appellant the right, if he does not concur in this additional abstract, to file his written objections thereto, and he has availed himself of that right and filed an objection, the substance of which is- that the oath does not bear the file mark of the clerk. We notice the change in the attitude; first he said or sought to imply that there was no oath, but when the oath is produced he says it does not bear the file mark. There is no question as to the form and validity of the oath, it bears the signature of the referee and that of the clerk certified under the seal of the court, but it does not bear the file mark of the clerk, and for this reason appellant contends that the whole proceeding is a nullity.

Section 703, Revised Statutes 1899, Ann. Stat. 1906, p. 710, directs that the oath be taken “before some officer duly authorized to administer an oath” and that it “he filed and returned with the award.” Appellant’s point is that it was not marked “filed” by the clerk, nor returned by the referee with his report. The statute is broad enough to authorize the oath to be taken outside of the court or outside of the clerk’s office, before a notary, or any officer authorized to administer an oath, and when so taken it would likely remain in the possession of the referee himself, and in that event it would be necessary for him to return it with his report into court. But when taken before the clerk and left with him it is filed; the indorsement “filed,” by the clerk, is only evidence of the fact. In Grubbs v. Cones, 57 Mo. 83, the court said: “The filing is the actual delivery of the paper to the clerk without regard to any action that he may take thereon.”

In Vogt v. Butler, 105 Mo. 479, among other exceptions to the referee’s report, was one that it did not appear in the record that the referee had taken the oath, but on the hearing of the exceptions in the circuit court proof was made by affidavit to the effect that on the day the referee was appointed the oath was administered to him by the judge of the court, though no record dr memorandum of it was made; upon that proof the circuit court allowed the referee to amend his report by interlining the statement that he had taken the oath. In passing on that question this court per Gantt, P. J., said: “It is too late to object to the referee’s report on this ground after all this acquiescence and consent. The subscribing of the oath was directory. The taking of the oath was the substantive fact required by law; the subscribing and filing it was intended to preserve the evidence of this compliance with the law. The attorney for the plaintiff appeared before the referee, examined and cross-examined the witnesses, and argued the cause before the referee and made no objection at any stage of the proceedings on account of the referee not having subscribed and filed an oath. We think the objection is wholly without merit.”

In the case at bar we have the oath duly subscribed by the referee and certified under the hand of the clerk and seal of the court, and lacking only the file mark of the clerk. Unusually long and apparently painstaking has been the trial, no hint of disqualification of the referee is made during the trial nor in the 31 exceptions to the report filed by appellant, nor in his motion for a new trial, or in arrest of judgment, hut only when the cause reaches this court is the supposed infirmity noticed. There is no merit in that point.

II. The evidence shows that the plaintiff is the sister of the defendant. The trust in him of her money affairs is shown to have commenced before the death of her husband, as early as 1883, when she loaned him seven hundred pounds sterling. That was a sum that Jason Crawford had bequeathed to defendant to be held by him during the lifetime of the testator’s sister Elizabeth, the interest to be paid to her, and on the death of Elizabeth the principal sum to be paid to the plaintiff. When-the life beneficiary died it was agreed between the plaintiff and defendant that he would retain the money as a loan and pay her eight per cent interest per annum on the same. There is no dispute about that.

The plaintiff’s husband died in 1894, leaving three life insurance policies payable to her, one in the Equitable for $25,000, one in the Massachusetts Mutual for $5,000, and one in the Mutual Benefit for $3,015.16. These several sums were collected in November, 1894, and.placed in defendant’s hands. The only difference between plaintiff and defendant as to those items is that she says they were loaned to him, while he contends that they were placed in his hands to be by him held without interest and invested for her. The referee decided that point against the defendant and his decision is supported by the weight of the evidence. The only testimony in support of defendant’s contention on that point was his own, and it was borne down by the testimony of the plaintiff herself and other witnesses, and by the course of dealing in which he paid her from time to time interest on these sums, and sometimes cautioned her that she was encroaching on the principal. But it is really of not much consequence what the original understanding or agreement was on that point, except as it may bear on an investment he claims to have made for her in stock of a mining company which owned or claimed to own certain mining property in South America, which alleged investment will be hereinafter again referred to and considered. But whatever may have been the original understanding, a very significant fact stands out concerning these life insurance moneys, that is, it was all placed in the hands of the defendant by his trusting widowed sister, and he gave her no note or memorandum, not even a receipt for the money. More implicit confidence could not have been shown than the plaintiff showed of her faith in the defendant; he was her brother and she trusted him with her all. What did he do with it? According to his own statement as a witness he deposited it in the treasury of a corporation of which he was then president, called the Missouri Glass Company, to his own credit, and i't became mingled with his own funds; he checked against it as his own money, and sometimes his account with that company was overdrawn. That was Ms own testimony. If, therefore, as he now claims he was only custodian of the money, he made a use of it that he had no right to make. After thus appropriating it to his own use he cannot complain if he is charged with interest.

The evidence shows that in January, 1895, the plaintiff requested defendant to give her a statement of account showing the amount of his indebtedness to her and he accordingly gave her a little book containing the account as he reckoned it, which embraced the Jason Crawford legacy $3,500 and the several life insurance sums, and, with items of interest on one side and credits on the .other, showed a balance of something over $34,500 due the plaintiff on January 1, 1895. This little book is referred to by the witnesses as the “red book,” it being bound in red leather. When .plaintiff was leaving St. Louis to go to New York in 1898 she requested the defendant to continue the account down to date, and for that reason she sent the red book to him, and though several times requested he never returned the book to plaintiff or gave her any statement of the account. Defendant in his testimony denied that book was returned to him, and denied that it Showed a balance of $34,500' in plaintiff’s favor, but he did not say what the balance was. A brother of the plaintiff and defendant testified that he was present when Mrs. Pullis asked defendant to return the red book to her, saying it was the only thing she had to show the account between them, but that defendant stated that he had returned the book to her; this she denied, saying to him that she had sent to him for it several times and he had not returned it. The preponderance of the evidence is that the book was returned to defendant with the request that the account be brought down to date and that he never returned it and never rendered any other account. The brother of plaintiff and defendant above mentioned, also testified that at another time he told defendant that plaintiff had told him that she had asked defendant several times to give her a statement of the account but that he had not done so, and witness asked defend-. ant why he had not done so, and defendant replied that he would not do so for the reason that if he gave her a statement it would admit of her taking a judgment against him at once.

Sufficient appears to put it beyond question that the defendant, at the several dates mentioned in the petition, received the several sums of money as in the petition stated and the only questions left to be considered relate to the credits to which the defendant is entitled. Before going into the smaller items we will notice some of the larger amounts which defendant claims as credits.

(a). In August, 1900, defendant gave plaintiff a power of attorney to collect his share of the estate of an aunt of theirs, Miss Sophia Crawford, in Ireland, and he claimed in his answer to be entitled to a credit for that share. We infer from the abstract that at the time he gave this power of attorney the aunt was living but has since died. He never before this suit gave the plaintiff an assignment of that interest and when requested refused to do so. But in his answer to the petition he said that he “assigned to her by way of power of attorney” that interest, and in his testimony he said that he gave her the power óf attorney to .collect his share in that estate and keep it for herself. Upon that pleading and evidence the referee allowed the defendant $3,000 as a credit on that account. Although the power of attorney, standing alone, would not have been equivalent to an assignment, yet taken in connection with defendant’s plea, and his own evidence and the allowance to him of that sum in the account, and the plaintiff^ acquiescence in the allowance, it is sufficient. The plaintiff has never collected this item, and she might well have objected to the allowance, but as she has acquiesced in the ruling of the referee, the ruling will stand and the judgment of the circuit court on the ruling was a transference of the title in that fund to the plaintiff.

The defendant’s attitude or attitudes in reference to this item are not consistent. In his answer he pleads this item as one for which he is entitled to a credit of $4,000, as a payment on the account, and in his testimony he said that he gave the plaintiff the power 'of attorney with the agreement that she was to collect it and keep it. At the trial he insisted that he had, in that way, assigned that item to the plaintiff and was entitled to a credit of $4,000, which he said his share in that estate was worth. But Mrs. Pullis after the aunt’s death went to Ireland to look after that very matter and she there ascertained that his share when the estate would he settled would he $3,000-, and she so testified, and the referee found that to he the value and gave defendant credit for that sum. But the defendant now says in his brief, page 111, that the referee erred “in deducting defendant’s share” in that -estate at all, because, he says, he never did assign it to the plaintiff. The power of attorney was given while the aunt from whom the inheritance was expected was living, and she was living- when the answer was filed claiming that as a credit, but before the trial ended the aunt died, and then the prospect of collecting his share of the estate became more real, and he now insists that that item should not .go into this account at all, he would now apparently rather collect that share himself and owe the plaintiff that much more. We think the referee took the just view of that transaction.

(b). Just before this suit, was commenced the defendant claims to have invested $5,000 for the plaintiff in the purchase of 50 shares of the Andes Mining Company, a corporation of which he had beén president. The only property that corporation ever had was an undeveloped mining property in- South America. The evidence shows that at the' time of the alleged “investment” the corporation was entirely insolvent and, as the referee found, the stock was “a liability rather than an- asset.” This was said in allusion to the condition of the company’s affairs as shown by the evidence; the mines were yielding nothing, expenses had accumulated, debts incurred, assessments were being solicited from unwilling shareholders, efforts were being made to induce others to buy stock to raise funds to develop the mines, but the efforts were unsuccessful. This transaction the defendant conducted all within himself; he was the owner of 81 shares and was president of the.company and he transferred 50 of his own shares to the plaintiff, as he testified, for $5,000, in cash; this he said he did in 1898 and it was not until nearly two years thereafter that he informed Mrs. Pullis, the plaintiff, of the “investment,” she had never heard of it before and never consented to it when she was informed of it. The first information the plaintiff received of the alleged transfer of this stock to her was in 1900 after she had placed her cause in the hands of her attorneys and after her attorneys had demanded of defendant a settlement. On the trial before the referee defendant was asked if he had instructions from Mrs. Pullis to make the purchase for her, he answered, “No, I-had not; it was not necessary.” That answer was on the theory that he was trustee for the plaintiff holding her funds to be invested according to his own judgment. Even if he had not, as his own evidence showed he had, already converted the whole alleged trust fund to his own use, even if he had her money then in a separate treasury for her use, his investment of $5,000 of her money in the purchase of his own worse-than-worthless stock would have been set aside in a court of equity as an abuse of the trust. The referee did not err in rejecting that item.

(c). The referee in his report says: “The defendant also claims a credit of $12,000, the alleged value of an equity in two houses and lots on Westminster Place transferred to the plaintiff by one Henderson at Ms request. I find from the evidence that the deed for this property was not accepted by the plaintiff. She did agree through her attorney to take the property if the title was such that the loan then past due, could be renewed. An examination was made, and the examiner reported a large number of suits and judgments in existence which endangered the title. On this report a loan was refused, unless a guaranty of the title was procured. On application for a guaranty to a trust company, that was refused, and the deed from defendant’s transferee was tendered back, and is again tendered in the reply. On this evidence I find that the deeds for the property were never accepted, and that defendant is not entitled to the credit he claims on that account.”

The testimony shows that after the plaintiff’s case was in the hands of her attorneys and the suit was either already begun or was imminent the defendant offered to the plaintiff deeds to these two Westminster Place houses. This occurred in the office of plaintiff’s attorney and defendant testified that he handed the deeds either to Mrs. Pullis or to Judge Rassieur, her attorney, he did not quite remember which. Judge Rassieur testified that when the deeds were offered he agreed to accept them for Mrs. Pullis provided after examination he found the title to be satisfactory; that he afterwards made the examinations and was not satisfied with the title 'and refused to accept the deeds, he tendered them back to defendant who refused to take them, tendered them also in plaintiff’s reply and at the trial. We will refer to the evidence on this point again when we come to consider some objections offered to it by defendant at the trial. We are satisfied the referee did not err in refusing to give defendant credit for those houses in the account.

(d). Appellant assigns as error the refusal of the referee to allow Mm $1,000 credit for rent of a place in the country called the O’Day Place. There ■was no claim in the answer for such a credit, and so far as the evidence shows the first time that claim was advanced was in February, 1905, long after the commencement of the trial before the referee. The evidence shows that the family moved on the place in 1891 on the suggestion of defendant in the following letter written by him to the plaintiff, dated May 4, 1891: “Dear Sister: The thought occurs to me in view of the many charms of the 0 ’Day Place and your love for a home to offer it to you. The balance coming to you and the difference for a gift will make it yours. I will advance what is necessary to build a house to your taste. Don’t say no to this until you and Gfus will come out with me and look and talk it over, as I feel this suggestion will do you good. Yours, W. ’ ’ The ‘ ‘ Gfus ’ ’ mentioned in the letter was the plaintiff ’s husband. As bearing on the question of the defendant’s indebtedness, we must note that that occurred before the defendant had received the moneys paid by the life insurance companies, and he had then only the Jason Crawford legacy, $3,500'. The Pullis family remained on the place several months, the dwelling house having been destroyed by fire before they moved out there; they lived in the barn for several months, and, not finding the place to their taste, they moved back into the city. Defendant does not claim that there was any agreement to pay rent, it was only an experiment to see if Mrs. Pullis would be pleased to buy the place, but he says it was his understanding that she would pay rent, and when asked why he had not mentioned it earlier he said it was because she was his sister. Appellant now insists that although there was no express agreement to pay rent, yet the law will imply such an agreement by the mere fact of occupancy. Sometimes the mere fact of occupancy will raise an implied assumption to pay rent, but not always so, and never so when all the circumstances repel the implication. The circumstances shown in the evidence in this case do repel snch an implied promise. Besides, if there was nothing else in the case to be considered than the mere fact of occupancy and if from that fact an implied agreement to pay rent arises, then, it is the implied agreement, of the husband of the family and not of the wife. The referee was right in his judgment on that item.

(e) Defendant insists that the referee should have allowed him $2,800' credit for premiums he had paid on the life insurance policies during the lifetime of the plaintiff’s husband, whereas the referee allowed him only $1,400 on that account..

The evidence shows that the plaintiff’s husband was a man of business affairs and reputed wealth. While he lived he provided for his family and there *was but little if any occasion for Mrs. Pullis to draw on the Jason Crawford legacy fund then in the hands of the defendant. She testified that in addition to the fund in the defendant’s hand she had from another source an income of $40 a month. But the testimony of defendant shows that he did pay some of the premiums on these policies, that he did so at, the request of Mr. Pullis, and did not mention the fact to Mrs. Pullis because Mr. Pullis had requested him not to do so, and defendant’s testimony also shows that he took Mr. Pullis’s notes for the premiums so paid, two of which notes covering the last two largest premiums were produced in evidence attached to the receipts. As the payment of these premiums was a matter between Mr. Pullis and the' defendant concerning which Mrs. Pullis was purposely not informed, the only evidence in relation to them available at the trial was that of the defendant himself. The receipts from the insurance companies were all made in the name of Mr. Pullis and the evidence shows that when the policies were delivered to the defendant for collection after the death of Mr. Pullis many of the receipts were folded iii the policies, and besides he had access to all Mr. Pullis’s papers; therefore, unless the defendant had kept a more careful account of his dealings with the plaintiff’s funds than his own evidence shows that he did keep, he may have been mistaken and have supposed that he had paid more premiums than he did pay. He testified that he took notes from Mr. Pullis for premiums paid other than the two produced, but he did not exhibit them at the trial.

The only premium ,paid by defendant that the evidence shows that the plaintiff had any information about was one paid in the last year of her husband’s life, which she testified her husband asked her to allow the defendant to pay out of the Jason Crawford legacy and she consented; that premium, she testified, was about $1,400; on proof at the trial it was shown to be $1,381.83. The referee gave the defendant credit for $1,400 on that account, which was fully as much as the defendant’s own evidence showed that he had any reason to claim and really that much more than in strict legal right he was entitled to, because the preponderance of the evidence indicates that defendant had already taken credit in the “red book” for all the premiums that he had paid, together with doctors’ bills and funeral expenses and other expenses incident to the last illness of Mr. Pullis, which were proper charges against the estate of plaintiff’s husband and not against her. But defendant insists that the plaintiff in her petition admits that he is entitled to two items of $1,400 each on this account. The clause in the petition on which this claim is founded is in the paragraph relating to the loan of the Jason Crawford legacy and is as follows: “Plaintiff states that in the year.1893, the defendant paid about fourteen hundred dollars at plaintiff’s request on account of said loan, and in the year 1894 defendant paid the further sum of about fourteen hundred dollars at plaintiff’s request on account of said loan.” The petition does not say that those two $1,400' items were premiums on the policies or that, either of them was, and the evidence does not show that to be the fact. The referee found that the second one, the one paid in 1894, was for the premium that plaintiff in her testimony admitted she had authorized to be paid out of her Jason Crawford' legacy and that accords with the evidence. The first $1,400 mentioned doubtless referred to other payments made prior to the death of plaintiff’s husband. The account stated in the “red book” was made out by the defendant and given to the plaintiff, as his own statement of his indebtedness to her, on January 1, 1895, and the preponderance of the evidence is that the balance there shown on that date was something over $34,500, but less than $34,750'. The plaintiff testified in reference to the account in the red book: “The funeral expenses, doctor bills and other expenses of last illness of my husband and family expenses up to January 1st and insurance premiums were taken out and left a balance of $2,800 due on the note and interest. The note in 1888 was for $3,900 and drew eight per cent interest.” Those of plaintiff’s witnesses who saw the “red book” also stated that it contained insurance premiums. The defendant himself testified: “It is my impression that I entered all the payments made by me for insurance premiums in the red book, but I won’t testify exactly.” If the referee had taken the balance shown by the red book as an account stated and had heard evidence only as to items occurring after that date he would have been entirely justified in so doing and if the plaintiff were here appealing she might insist on eliminating the items of credit allowed prior to that daté. We are not overlooking the fact that defendant denied the testimony of the plaintiff and of her witnesses as to the contents of that red book, but he stands alone on that point.- He also denied that the book had been returned to him to bring the account down to date, yet his brother testified that he was present on one occasion when Mrs. Pullis asked him to return the book to her, saying that it was the only writing she had to show how the account stood, whereupon the defendant replied that he had already returned it to her, which she strenuously denied, and subsequently defendant. told the same brother that the reason he did not return the book to Mrs. Pullis was that if he did so she could take a judgment against him at once. Thus we find him at one time denying that the book had been returned to him, then saying that he had returned it to the plaintiff, and afterwards that the reason he had not returned it to her was that had he done so she could at once take a judgment against him. If therefore the referee concluded that the defendant’s statement as to what the book contained was less reliable than the statements of the plaintiff and other witnesses who saw the book we cannot say that he was wrong in his judgment. We think that in allowing the defendant $1,400 on account of premiums paid, the referee allowed him that much more than he was strictly entitled to, but as the plaintiff was willing to allow it, the referee was justified in doing so, but we also hold that the referee did not err in not allowing him the other $1,400 now claimed.

(f). Defendant paid the rent on the house in which the plaintiff was living at the time of her husband’s death and has charged that as cash paid her in his account. The referee hás allowed that item. Defendant had three vacant houses, two of which were in Westminster Place, and the other on Washington Avenue, all of which he desired to sell. In July, 1895, plaintiff moved into one of the Westminster Place houses with the agreement, as she testified, that she would take care of the houses, show them to prospective buyers, and assist in the effort to sell them. Nothing was said about rent at that time, but after one of the houses was sold and the one adjoining the house in which she was living was rented, she told the defendant that she would pay him the same rent he was to get from the other house, $60 a month, and he agreed to that. In his account he has charged this rent as cash paid to Mrs. Püllis and the .referee has allowed him those items in the account, but in 1899 the plaintiff rented the house furnished with her own furniture at $100 a month, which defendant collected and remitted to her and charged her as cash the full sum of $100 per month, while at the same time he was renting the adjoining house exactly like it but unfurnished for $60 a month. The referee concluded that the extra amount of rent collected for the furnished house was due to the fact that it was furnished and therefore allowed defendant only $60 a month for the house. Defendant complains of that ruling. We think the referée was right.

III. In addition to the items above discussed the defendant has filed as *‘Exhibit A” to his answer a list of over three hundred items which he claims as credits and which aggregate $28,611.27 and which if added to the items already discussed and claimed by him would make a total of $56,811.27.

We do not consider it necessary to discuss and set out in this opinion the evidence bearing on each of those three hundred items. Some the referee has allowed and some he has not allowed; we have read all the evidence shown in the two abstracts bearing on the alleged payments and we find no fault with the referee’s finding. The only specific complaint appellant now makes in reference to those three hundred items is that the referee does not make a separate finding on each of them. Appellant in his brief says he cannot know from the report which items were allowed and which were not allowed. The referee was not required to make a separate finding on each of those items, they were not set out in the pleadings in such a manner as to call for a separate finding as to each item. On each item specially pleaded in the answer the referee has made a separate finding, bnt these three hundred items are pleaded in a lump and the referee would have been entitled to treat them in a lump. This is the way in which these items are pleaded in the answer : “That at the instance and request of plaintiff, defendant paid out from time to time various sums of money for her and at her request on account as appears by detailed statement attached hereto made a part hereof and marked ‘Exhibit A’ aggregating the sum of $28,611.27.” An exhibit is no part of the pleading and per se tenders no issue calling for a separate verdict, but the exhibit in this case is so vague and indefinite that it does not give the trier of fact an intelligent understanding of what the various items mean. Defendant’s testimony was to the effect that many of the cash items he paid to plaintiff, many to her sons or daughters, and many were for rent and other things, but the exhibit does not show under which of those heads the various items fall. The referee took the evidence of the defendant and the plaintiff and her children on all of these items and made a finding for each year of the aggregate of the payments made or credit earned.

Appellant relies on State ex rel. v. Peterson, 142 Mo. 526, to sustain his demand for a finding on each item; but that case does not sustain that contention. That was a suit on an official bond and there were a large number of counts in the petition, the only thing the court decided on this question was that there should have been a finding on each count. The court said: “When several distinct causes of action are stated, the same reasons for separate findings would seem to apply to a referee as to the verdict of a jury.” There the court likens the finding of a referee to the verdict of a jury; suppose a plaintiff should sue in one count on an account for goods sold from time to time, running through a period of a year or more, must the jury render a separate verdict on each item?

Defendant testified that he never kept an account of the items of moneys paid out by him to the plaintiff or to her children, he only had loose receipts or memoranda which did not include all, and for the rest he relied on his memory, for a large number of the items claimed, he had nothing to show. He testified: “I did not keep any system of accounts at all; as the drafts or requests would come in I would either give the money from my pocket or go down to the cashier of the Missouri Class Company and get the cash from my account there for her. Q. Did you keep any system of books in connection with this fund? A. No, I did not.” This was the business conduct of a man of experience in business affairs, who was at the time the president of a large mercantile corporation. According to his testimony the only account that would show any of the items of this business was his own personal account in the books of the Missouri Class Company. He was asked to obtain a copy of that account from the books of the company and present it to the referee, but he never complied with the request. While testifying on this point he was asked by Judge Rassieur, the plaintiff’s attorney: “Will you give me authority to ask for a copy of that account [defendant’s account on the books of the Missouri Class Co.] from the time of the deposit of Mrs. Pullis’ money, and thus enable me to obtain such copy? A. No. There are different reasons for my refusal; in the first place I have no right to authorize that authority; the second, there is nothing in that account that will be of any utility to you in the world.” Defendant’s reliance to sustain his claim on every disputed item was his own uncorroborated testimony. If he had been an inexperienced man in business affairs, some excuse might have been indulged for this loose method of handling this business, but under the circumstances his method was not calculated to inspire confidence. We think the referee took a very just and equitable view of the controversy and we find no fault with his conclusions as to the facts.

IY. Appellant contends that the referee admitted illegal testimony.

It was in evidence that when the defendant handed the deeds to the Westminster houses to Mrs. Pullis or to Judge Rassieur (defendant did not quite remember which), Judge Rassieur told him he would take the deeds and hold them until he could examine the title and if satisfactory would accept them for the plaintiff. Judge Rassieur testified that on his investigation he found that the title to the property had recently been transferred by defendant to an insolvent brother-in-law of defendant for a nominal consideration, and that at the time of that transfer suits were pending against the defendant which soon thereafter ripened into judgments against him; that Judge Rassieur went to a title guarantee company to see if it would contract to guarantee the title but the company declined to do so, then he tendered the deeds back to defendant who refused to accept them.

In that connection the plaintiff also introduced in evidence a number of court records showing judgments against defendant and in connection with those records introduced a certified copy of the deed from defendant to his brother-in-law, for the purpose of showing the comparative dates of the deed and the judgments. The deeds that were offered by defendant to the plaintiff were the deeds of this brother-in-law of defendant. All that evidence went in over the defendant’s objection and he now insists that it was error. If the issue on trial had been the title to the property, the evidence, at least that part of it in which the witness stated the result of his investigation and his conference with the title examiners, and the title guarantee company, would have been incompetent. But that was not the issue. The question was did the attorney investigate for the purpose of satisfying himself so as to he able to advise his client? He held the deeds to be retained or returned according to what his investigation would satisfy him as to the title. The information he obtained may have been incorrect, but if it satisfied him 'that the title was insecure he had the right to act on it in advising his client. His duty as a lawyer seeking information on which to advise his client did not demand of him to do more than he did. The evidence offered only tended to show that he had not arbitrarily or capriciously refused to accept the deeds, but had made a faithful examination and decided the question that was left with him to decide. On the examination if he became satisfied that a deed made by defendant then in the toils of law suits, to an insolvent brother-in-law, for a nominal consideration, and a transfer of the title by the brother-in-law to a sister of defendant would probably involve her in a law suit with the defendant’s creditors, he had the right to advise his client to decline to take the deeds. The referee was not passing judgment on the title to the property, but only on the question of whether or not the plaintiff had accepted those deeds, and this testimony only went to show that after the attorney had investigated the matter and satisfied himself as to the title he advised his client not to accept the deeds and she acted on his advice. There was no error in overruling the objection to that evidence.

There was also evidence tending to show the financial condition of the Andes Mining Company, not only at the date of the alleged “investment” in 1898, but also down to the time it was brought to the plaintiff’s knowledge in 1900, the tendency being to show not only that the condition was bad in 1898, but that it grew worse as the time went on. The appellant contends that the showing should have been limited to. the date of the alleged investment. The defendant’s own testimony in effect though not in terms shows that the stock was worthless when he claims to have transferred it, and he made no effort to show that it had improved since. If it was worthless in 1898 it will he presumed, until the contrary is shown, to have continued worthless, and although the evidence tending to show the corporation’s increased financial troubles may have been unnecessary, as bearing on the question of the real value of the stock, it was pertinent as bearing on the question of the good faith of the defendant in trying to impose fifty shares of his own worthless stock on the plaintiff for $5,000 in cash.

Y. One more point of appellant remains to be considered.

In his brief he complains that he has been charged •with compound interest, that the referee has erred in calculating interest, and in his method of calculating interest. It does not appear from the abstract that the question concerning compound interest was presented to the circuit court, at least not so in express terms. In his thirty-one exceptions to the referee’s report and thirty-two grounds in his motion for a new trial, no mention is made of compound interest. The nearest he came to raising that question in the circuit court was in Exceptions 6 and 7 which are also repeated in the motion for a new trial. Exception 6 is: “Referee has erred in all his calculations of interest.” That only means that the referee was at fault in his mathematics. Exception 7 is: “ The referee has erred in his method of calculation of interest, the same being contrary to the law of this State.” That only refers to the method of calculation. That that was what the exception was designed to mean is shown by another paragraph in appellant’s brief, page 136, where it is said: “The error lies as shown, supra, in not calculating interest to date of first payment, deducting payment, calculating interest on remainder to date of next payment, deducting' payment and so on.” Another method of calculating interest is indicated in appellant’s Exception 18, which is that the referee ought to have allowed defendant interest on each item of his credits from the date of payment. So far as the record shows those two methods include all the complaint that the defendant made in the circuit court on the question of interest and neither of them refers to compound interest.

Where there are mutual running accounts interest may be given on both sides until a balance is struck, but when the balance is struck, the interest runs only on the balance. When one makes a part payment on a debt he owes he is not entitled to have interest to run on the money he paid, in such case interest runs only on the balance due on the debt.

The referee did charge the defendant interest with annual rests, which constituted compound interest. If defendant should be taken at his own word, both in his pleading and his testimony, he would be liable, in the discretion of the trial court, to be charged with compound interest, because, according to his statements, this money was not loaned to him at all, but was placed in his hands by his confiding sister to be invested for her as in his judgment would be best for her and thereupon he immediately deposited it to his own credit and used it in his own business. The statute, section 3711, Revised Statutes 1899, which allows compound interest only on express written contract therefor, does not apply to the accounting of a derelict trustee. [Cruce v. Cruce, 81 Mo. 676; Bobb v. Bobb, 89 Mo. 411; In re Murdoch & Dickson, 129 Mo. 488.]

But the plaintiff can recover only on the case made by her own pleading and proof, not that made by her adversary. And although the point was not raised .in the circuit court yet as it is an error appearing on the face of the record it should be corrected here; but the correction should not be made at the cost of the plaintiff, because tbe presumption is that if tbe attention of tbe trial court bad been drawn to it the error would have been corrected there, or plaintiff would have been allowed to enter a remittitur to the extent of the excessive interest.

The correct method of counting interest in case of partial payments is stated in Riney v. Hill, 14 Mo. 500, as counsel for appellant rightly contends. The rule as there stated has been frequently referred to and approved by this court; it is this: ‘ ‘ Interest is first to be calculated on a demand up to the first partial payment —then add the interest to the principal and deduct the payment therefrom, then cast interest on the remainder to the second payment, add the interest to the remainder and deduct therefrom the second payment, and so on until the last partial payment, unless in any case the interest up to any payment shall exceed the payment, in which case such payment is to be deducted from the interest; and the excess of the interest is to be carried forward, without casting interest thereon, to the next payment that will discharge the excess.”

Appellant also contends that the referee should have calculated the interest up to the date of each payment instead of adding together at the end of the year all the payments made at different dates in the course of the year and casting the interest to that date. Although that method would have given the referee a long and wearisome task yet in strictness it is the method he ought to have pursued. And since the account as stated by the referee does not give the several items and respective dates, but gives the aggregate of all the items paid during the year, there is no other way to correct the error except to give the defendant credit as if he had made all the payments on the first day of January of the year in which they were paid; by so stating the account the defendant would gain more than if the method of calculating the interest up to the date of each item as contended for by him had been strictly pursued, but unless that advantage be given him the parties would be involved in a re-reference which would cost more than the small difference in interest would be, to say nothing of the extension of the time of this already unusually long litigation.

Calculating the interest by the method above quoted from Riney v. Hill, 14 Mo. 500, and giving the defendant credit on the first day of January of each year for all the payments thereafter made by him during that year, the true balance due the plaintiff from defendant at the date of the referee’s report, January 15,1906, is $33,518.63, instead of $35,167.98. We therefore deduct the excess of interest, $1,649.35, from the balance shown by the referee’s report, leaving the correct balance $33,518.63, for which sum with interest at six per cent per annum from January 15, 1906, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    THE STATE ex rel. L. A. KELLY, Collector, v. GEORGE A. SHEPHERD, Appellant.
    Division One,
    March 31, 1909.
    1. TAXATION:' Personal Property: Follows Person: School District. Personal property is taxable at the domicile of the owner and in the school district in which he resides. If he is taxed in the wrong district or county, the taxes are illegally assessed and cannot be enforced.
    2. -: -: Residence: Definition. There is no difference at common law or in the Revenue Statute in the meaning of the word “domicile” and “residence.” Both mean a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.
    3. -:-:-: Intention: Lodgment: Statute. The intention of the taxpayer is always to be considered in an endeavor to ascertain what is his residence or domicile and in fixing the place where his personal property should be taxed. The statute (Sec. 4160, R. S. 1899) in saying that “the place where any person having no. family shall generally lodge, shall be deemed the place of residence of such person,” did not fix a new meaning to the word “residence” as used in the Revenue Statute, and was not intended to mean that the place where an unmarried man usually sleeps is to he his residence rather than the place where he lives and which he claims as his home or domicile; for that statute also says at the outset that “the construction of all statutes in this State shall he by the following additional rules, unless such construction shall be plainly repugnant to the intention of the Legislature or the context of the same statute,” and the court can ascertain the meaning of the revenue statutes as to residence without resorting to that statute, and to permit it to control would be to make it repugnant to the Revenue Statute.
    4. -: -: -: Unmarried Man: Lodging With Parents. Defendant was an unmarried man and owned a farm in the country, on which was a farm house in which he kept a room, and intended and considered the farm house his home, where he occasionally took a meal with his tenant. His aged parents lived in town, and at the time of the assessment of the taxes sued for and for a number of years prior thereto he lodged at night in their home, 'going every morning to his farm to look after it and to care for his stock, and his sole reason for lodging with his parents at night was that they were old, sickly and helpless and needed his care and assistance. Held, that his personal property was not taxable in the school district of which the town was a part, but in the school district in which his farm was situate, and that holding is in consonance with the Revenue Statute, and that being a clear statute it is not necessary to re- . sort to the “Construction” Statute providing that “the place where any person having no family shall generally, lodge shall be deemed the place of residence of such person.” This last ■statute should not be allowed to determine the place of the defendant’s residence or domicile.
    Transferred from Kansas City Court of Appeals.
    Reversed.

      Frost & Frost for appellant.
    (1) Personal property is taxable at tbe domicile of tbe owner, and in tbe scbool district in wbicb owner resides or bas bis domicile. Stephens v. Mayor of Boonville, 34 Mo. 323; State ex rel. v. McCausland, 154 Mo. 189; State ex rel. v. Brown, 172 Mo. 374; School Dist. v. Wickersham, 34 Mo. App. 340. (2) If the tax herein is levied and extended against defendant in the wrong school district then plaintiff cannot recover. State ex rel. v. Railroad, 135 Mo,. 630; State ex rel. v. Brown, 172 Mo. 380; State ex rel. v. Railroad, 110 Mo. 265. (3) Under Sec. 9121, R. S.- 1899, personal property is taxable at residence of owner; and residence, as used in said section, and in the law generally concerning taxation, is synonymous with domicile. And the tax should in all cases be extended in favor of the school district in which the owner has his domicile. State ex rel. v. Brown, 172 Mo. 384-; State ex rel. v. McCausland, 154 Mo. 189; School Dist. v. Matherly, 84 Mo. App. 141; School Dist. v. Matherly, 90 Mo. App. 403; State ex rel. v. Penter, 96 Mo. App. 419; Corn v. City of Cameron, 19 Mo. App. 579; School Dist. v. Wickersham, 34 Mo.-App*. 340; Burroughs on Taxation, pp. 40 and 215; Cooley on Taxation, pp. 369 and 370. (4) In determination of domicile, intention governs. Defendant’s domicile was not changed from his farm located in the School District Number 14 to the Plattsburg School District, by reason of his spending a portion of his time at the home of his parents for the purpose of caring for them, so long as he intended his residence on his farm as his domicile. His temporary or continued residence in Plattsburg for purpose of caring for his parents did not change his domicile so long as he considered and intended the other as his domicile and home. Cooley on Taxation, p. 369; State ex rel. v. Dayton, 77 Mo. 682; Tailor v. Abernathy, 37 Mo. 196; Green v. Beckwith, 38 Mo. 385; Venuici v. Cademarton, 59 Mo. 234; Chariton County v. Moberly, 59 Mo. 238; School Dist. v. Matherly, 84 Mo. App. 141, 90 Mo. App. 403; State ex rel. v. Banta, 71 Mo. App. 32; Langford v. Gebhart, 130 Mo. 639; Hall v. Schoenecke, 128 Mo. 661; State v. Sanders, 106 Mo. 188. (5) Section 4160 has existed since 1865, and applies and relates to the service of process, so that the service of process may he had hy leaving it with some white member of the family over the age of fifteen years, where the defendant may be absent from home, and the place to make the service is pointed ont by a subdivision of said section of the statute to be when the defendant has a family, the place where his family shall permanently reside, and in case of single person, where he “shall generally lodge.” Phillips v. Evans, 64 Mo. 24; Yenuici v. Cademarton, 59 Mo. 354. Intention governs in case of single person the same as in other cases, as in case of student. Hall v. Schoenecke, 128 Mo. 661; Langford v. Gebhart, 130 Mo. 639.

      F. B. Ellis for respondent.
    (1) If appellant usually lodged in Plattsburg, being a single man, that was his residence under the cold letter of the law, regardless of his intentions, and this being the case he was rightfully assessed in Plattsburg School district. Sec. 4160, R. S. 1899; Phillips v. Evans, 64 Mo. 24; Mercantile Co. v. Burrill Sisters, 66 Mo. App. 1Í7. A man’s domicile or usual place of abode means his home from which he goes and returns daily, weekly or habitually from his ordinary avocation and business wherever carried on. Green v. Beckwith, 38 Mo. 387. If this definition be correct, it clearly catches defendant; he cannot escape, and the learned trial judge rightly held his residence was Plattsburg; he will not be permitted to escape the just burdens of taxation by such flimsy pretexts. “Residence” is personal presence in a fixed and permanent abode, the abode where one actually lives. Bouv. Law Diet., 904. (2) Defendant cannot attack the assessor’s list in a collateral proceeding. The assessor acts quasi-judicially; his conduct can only be attacked in a direct proceeding. Hamilton v. Rosenblatte, 8 Mo. App. 237. This court has recently held that the proceedings of the board of equalization were judicial and could not be collaterally attacked. We think this true of an assessor’s list who arbitrarily places the list wrongfully. Gottlieb v. Tel. Co., 165 Mo. 502. The law presumes that all officers do their duty. It was the duty of the assessor to call upon defendant and assess him where he resides; the presumption is he did so, and that he acted within the law. Agan v. Shannon, 103 Mo. 661; State ex rel. v, Bank, 120 Mo. 161. If defendant had been wronged by the assessor he should have made a direct attack upon the assessment. The assessor certainly has some rights in this controversy. How could he defend, or how could the collector defend on this collateral attack, as the assessment list was fair and legal according to law? (3) The cases cited by counsel for appellant on the question of intention are not in point; in all of these cases it was where the residence was temporary for either business or pleasure purposes. In all of these cases the intent was gathered from the conduct of the parties, as in the case of Hall v. Schoenecke, 128 Mo. 661. In this case the court held that a student in a school might gain a residence at the place where he went' to attend school only; whether he had done so or not depended upon the facts and circumstances. (4) This suit must be affirmed for another reason. Appellant owed taxes in said district. He has failed to tender any amount, which he should do. If he is taxed in the wrong district he should tender the amount in the right district to the collector. He can not entirely escape because his taxes are^assessed to the wrong district. State ex rel. v. Railroad, 110 Mo. 265; Walker v. St. Louis, 15 Mo. 563.
   WOODSON, J.

This suit was instituted by the Gollector of the Revenue of Clinton county, in the circuit court thereof, to recover of defendant the sum of $131.56 taxes, together with interest and costs, alleged to be due the Plattsburg School District, assessed against lis personal property for tie years 1901 and 1902.

Tie answer was a general denial, and a plea tlat tie defendant was not a resident of tie Plattslnrg Sclool District during said time, Int was a resident of Sclool District No. 14, and lad been for many years prior tlereto.

Tie plaintiff introduced in evidence tie taxbill sued on, and rested; tlen tie defendant introduced testimony tending to prove tie allegations of tie answer.

At tie request of tie defendant, tie trial court made and filed in tie cause tie following special finding of facts:

“After a full hearing of tie evidence in tie above entitled cause the court finds tie facts in controversy therein, as follows:
“Tlat Geo. A. Shepherd resided at tie time of tie assessment of tie taxes herein sued for on a farm and farm residence lying wholly outside of tie limits of tie sclool district of the city of Plattsburg. Tlat he kept a furnished room in said farm louse. Tlat Ms mother and father removed to tie city of Plattsburg inside tie limits of tie sclool district of tie city of Plattsburg, and tlat at tie same time of tie assessment of tie taxes herein sued for and for a number of years prior tlereto tie defendant lad generally and continuously lodged with Ms parents at their home in Plattsburg. Tlat at tie time of tie assessment of tie taxes herein sued for and prior to tlat time defendant lad never considered tie home of Ms parents in Plattsburg as his home, but intended and considered Ms farm louse as Ms home, where he occasionally took a meal with Ms tenant who occupied a portion of said farm louse.”

While tie evidence conclusively slows, yet tie court omitted to find tie following facts, to-wit: Tlat defendant was single and lad no family; tlat tie sole reason why he lodged with Ms parents at night was because they were very old, sickly and helpless, and needed his care and attention; and that every morning after staying with his parents he would return to his farm for the purpose of looking after it and caring for his stock.

The appellant duly excepted to the finding of facts because of the court’s omission to find and include therein the facts above stated. Whereupon, the plaintiff offered the following declaration of law:

“1. The court declares the law to be that if the defendant occupied a room at the residence of his father and mother in Plattsburg, Missouri, and that She was a man without any family, and that he usually boarded and lodged at such residence of his father and mother, then the defendant was a resident of said Plattsburg School District, and his property is subject to taxation in said district; and if the court so find then the judgment must be for the plaintiff for the taxes sued for.”

Which declaration of law the court gave; and to the giving of which declaration on the part of ■ the plaintiff the defendant, by his counsel, then and there at the time excepted.

The defendant thereupon asked the court to instruct the jury as follows:

‘ ‘ That the domicile of a person when once fixed by his living at a place with the fixed intention of making it his home, is not changed by his removal to another place or location under comforts and surroundings of a home, until he has a fixed intention of abandoning his former domicile and home and of acquiring or fixing a domicile at the place to which he has removed.”

Which instruction the court refused, at the refusal of which the defendant, by his counsel, then and there at the time excepted.

The court then found for the plaintiff for the amount of the taxes due, together with the interest and costs, and rendered judgment against the defendant therefor. In due time defendant filed his motion for a new trial which was by the court overruled, to which action of the court defendant duly excepted. He then appealed the case to the Kansas City Court of Appeals, and that court certified the same to this court under the provisions of the Constitution, because the case involves the construction of the revenue laws.

Appellant’s assignments of errors are as follows:

“First. The court erred in giving instruction No. one on the part of the plaintiff, for the reason that said instruction does not take into consideration a man’s intention as having anything to do with fixing his domicile, and is not the law.
“Second. The court erred in refusing defendant’s instruction number two, which correctly declares the law.
“Third. The court erred in its holding that a man’s residence is determined wholly by his lodging place, which may be even temporary and without any intention of making such place his home or domicile or residence.
“Fourth. The court erred in its finding of facts in not further finding that defendant’s sole reason for being in and lodging in the Plattsburg School District was for the purpose of caring for his parents in their old age, that his previous residence had been outside said district, and that he had no intention of changing it up to the time of the assessment of the taxes sued for.”

I. It is conceded by counsel for both appellant and respondent that personal property is taxable at the domicile of the owner and in the school district in which he resides. [Stephens v. Mayor of Boonville, 34 Mo. 323; State ex rel. v. McCausland, 154 Mo. 185; State ex rel. v. Brown, 172 Mo. 374.]

And it is equally well settled that if a person is taxed in the wrong district, or county, then it is illegal and its collection cannot be enforced. [State ex rel. v. Brown, supra, l. c. 380; State ex rel. v. Railroad, 135 Mo. l. c. 630; State ex rel. v. Railroad, 110 Mo. 265.]

II. This brings us to the consideration of the main legal proposition presented by this appeal.

The uncontradicted evidence in the case shows, and the court found, that at the time the assessment of the taxes in question was made, the appellant was a resident of School District Fourteen, and not of Plattsburg School District, the one in which the assessment was made, and that during the years 1901 and 1902, and for many years prior thereto, appellant had kept a furnished room in his house on his farm, situate in said District Number Fourteen, which he occupied whenever there, but that during the greater part of those years he generally and continuously lodged at night with his parents at their home in the city of Plattsburg, which constitutes the Plattsburg School District. The evidence also conclusively shows that the sole reason for appellant’s lodging with his parents was because they were old, sickly and helpless, both of whom died during those years, and he considered it his duty to stay with them' at nights in order to minister unto their wants and necessities, but always returned every morning to his farm in said District Fourteen for the purpose of looking after his farm and caring for his stock. The evidence also shows that during said years he always considered and claimed his residence to be in said District Fourteen, and voted there, and never claimed Plattsburg to be his home. Upon this state of facts the court gave the instruction asked by respondent, which entirely ignores the intention With which appellant lodged at the home of his parents, and what place he intended and claimed to be his residence during those years, and declared as a matter of law that if he generally lodged at the residence of his parents, then his personal property was taxable in said Plattsburg School District, notwithstanding the evideuce showed and the court found that he was a resident of District Fourteen.

Counsel for appellant contends that his legal residence was upon his farm in District Fourteen, and that his intention in that regard is controlling and conclusive upon that question, and that his residence was not affected by his temporary stay with his parents. It seems that counsel for respondent would concede the soundness of appellant’s contention in that regard were it not for the language used in the seventeenth subdivision of section 4160 of the Revised Statutes of 1899. That section is found in chapter 45, Revised Statutes 1899, entitled, “Construction of Statutes”; and reads as follows:

“ The construction of all statutes of this State shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute: . . . . seventeenth, the place where the family of any person shall permanently reside in this State, and the place where any person having no family shall generally lodge, shall be deemed the place of residence of such person or persons respectively.”

It is the contention of counsel for respondent, and the trial court adopted his views, that this statute fixes the residence of a person without a family for the purpose of taxation only at the place where he generally lodges, regardless of his intention in the matter. These respective contentions, as before stated, sharply pre-' sent the chief legal proposition to be decided in this case.

We have been cited to no statute embraced within the revenue laws of the State which attempts to define or fix the residence of any person for the purposes of taxation, and we have searched those laws in vain for such a statute, and consequently feel satisfied that no such exists. In the absence of any such statute, we must look to the common law and to other statutes in determining the meaning of the words “residence” and “domicile” as they are used by the Legislature in the revenue statutes.

At common law, all of the authorities agree that those words are used interchangeably and have practically the same meaning. The latter seems to have been more generally used by the text-writers and in the adjudicated cases, but our statutes more frequently use the word “residence.” The word “domicile” is defined by Mr. Burrill in the following words: “A residence at a particular place accompanied with positive or presumptive proof of an intention to remain there for an unlimited time; ’ ’ and Mr. Blackstone defines the word “residence” to be “the abode of a person or incumbent or his benefice — opposed to non-residence.”

While this court has not attempted to give a technical definition of either of said words, yet it has in numerous cases used them in the sense before mentioned. [Lankford v. Gebhart, 130 Mo. 621; Hall v. Schoenecke, 128 Mo. 661; Hope v. Flentge, 140 Mo. 390; Morgan v. Brase, 140 Mo. 415; State ex rel. v. Brown, 172 Mo. l. c. 384; State ex rel. v. McCausland, 154 Mo. l. c. 189; State ex rel. v. Banta, 71 Mo. App. 32; State ex rel. v. Renshaw, 166 Mo. 682.]

In this State we have many statutes which employ the words “resident,” “citizen,” “domicile,” “place of residence,” etc., which relate to exemptions, elections, officers, taxation, attachments, place of bringing suits, etc., but none of those statutes seem to have undertaken to define any of those words; and in all of the cases to which our attention has been called, the courts, in construing their meaning, have been controlled very largely by the intention of the person whose residence or domicile was in question. That was the sole controlling fact in the ease of State ex rel. v. Renshaw, supra, which involves the question as to where his personal property should be taxed. The authorities are also uniform in holding that when a person has once acquired a residence or domicile, then such residence or domicile is not lost by reason of his temporary absence therefrom on pleasure or business. [Cooley on Taxation, p. 369; State ex rel. v. Dayton, 77 Mo. 682; Tiller v. Abernathy, 37 Mo. 196; Greene v. Beckwith, 38 Mo. 385; Venuci v. Cademartori, 59 Mo. 352; Chariton Co. v. Moberly, 59 Mo. 238; Lankford v. Gebhart, 130 Mo. supra; Hall v. Schoenecke, 128 Mo. supra; State v. Sanders, 106 Mo. 188.]

So, under this view of the law we would be compelled to hold that appellant was a resident of District Fourteen, and not of Plattsburg District, unless, as contended by counsel for respondent, said section 4160 has changed the meaning of the word “residence” from its ordinary and generally accepted meaning to that of place of lodgment.

By reading said section it will be seen that it does not undertake to declare in unqualified terms that the place where a person without a family generally lodges shall be taken to be his place of residence, but, upon the contrary, the enacting clause of that section in express terms provides that “the construction of all statutes of this State shall be by the following additional rules, unless such construction be plainly repugnant to the intention of the Legislature, or the context of the same statute.” Clearly, it was not the intention of the Legislature by enacting that statute to compel the courts to hold as a matter of law that the residence of a person without a family was the place where he generally lodges, for had that been the intention it Would have said so in so many words, without having qualified the section by stating that the rules stated therein, twenty-two in number, should be considered as “additional rules” of construction of all statutes of the State. The Legislature intended thereby to assist the courts in properly construing “all statutes of the State” by providing those additional rules of construction, and it did not thereby undertake itself to construe all of the statutes of the State. This is made clear by the clause thereof which in express terms provides that said rules should never be employed in construing any statute where their use would lead to a construction which was repugnant to the plain meaning of the statute under consideration. So, in our judgment, we do not think it was the intention of the Legislature to absolutely command the. court to resort to those “additional rules” of construction where the court could ascertain the clear meaning of a statute without resorting to them. In other words, the Legislature simply meant thereby to furnish additional rules of construction to those already existing for the construction of all statutes of the State, which the court might or might not bring to its assistance in the construction of a particular statute, in the same manner that it would employ or reject any and all other rules of statutory construction. All such rules rest upon the same footing, and may or may not be resorted to, as the particular case under consideration may require. Under that view of section 4160, if the court can ascertain the plain meaning of the words “residence” and “domicile” as used by the Legislature in the revenue statutes of the State, without resorting to the “additional rules” of construction stated in said section, then we are not required to do so in construing those words as they appear in the various sections of chapter 149, Revised Statutes 1899, regarding the assessment and collection of the revenues.

Having reached the conclusions that the Legislature did not define the words “residence” and domicile” by enacting said section 4160, and that this court is no more bound to consider the rules of construction therein stated than it is to consider any other rule of statutory construction, we will, therefore, return to the inquiry, what is the place of residence of a taxpayer who has no family within the meaning of said chapter 149 ?

If this was a new question presented to this court for the first time, we would have no hesitancy in saying that the word “residence” as used in the revenue statutes means the place where the taxpayer lives and which he claims to be his home or domicile. If the contention of counsel for respondent is correct, then all personal property of whatsoever nature or character would not be assessed in the county and district where the owner resides, as provided by statute, but would, in all cases where the owner had no family, be assessed in the county and district where he generally lodges, as provided by section 4160. If that is the meaning of the statute, then the personal property of all persons who have a family would be taxable in the county and district in which they reside, while that belonging to all persons who have no family would be taxed in the district where they generally lodge, although temporary in point of time, regardless of their real residence and of their real intentions and purposes in being temporarily absent therefrom.

The revenue statutes make no such distinction as to the place where the property of persons who have families and those who have none shall be assessed. And to make that distinction by placing respondent’s construction upon section 4160, we would thereby do violence to the statute which provides that all such property shall be assessed in tbe county and district in which the owners reside. That being clearly true, then according to the express terms of section 4160, as before shown, it has no application, for the reason it would be “repugnant to the intention of the Legislature, or to the context of the statute under consideration.” While that statute has never been considered by this court in any of the cases I have read, yet, as before shown, the result would not have been changed had it been considered.

We are, therefore, of the opinion that appellant was a resident of School District Number Fourteen, and that his personal property was taxable in that district and not in the Plattsburg District. The action of the court, therefore, in giving instruction No. 1 for respondent, and in refusing No. 2, requested by appellant, was erroneous.

The judgment is reversed.

All concur.