text:
    ALEXANDER EUSTON, Appellant, v. S. C. EDGAR.
    Division One,
    November 27, 1907.
    1. FRAUDULENT SCHEME: Combination in Restraint of Trade: Foreign Corporation. A combination or agreement in restraint of trade, made in this State and illegal bere, cannot be invested with legality by tbe formation of a corporation under the laws of another State to be used as a tool or instrument for cartrying out the illegal agreement.
    2. -: -: -: Agreement Between Smelters. An agreement between the owners of zinc furnaces or smelters, all interested in the manufacture and sale of smelter and desiring for their own pecuniary proft to advance the market price of their product, hy which they came together in Missouri and formed an Illinois corporation to have as its stockholders the owners of said furnaces in Illinois, Kansas and Missou'ri, and to which all the concerns going into the scheme are to sell their product at an agreed scale, to be sold by it, the profits to go back to said concerns in the way of dividends, the purpose being to control the product in the market, avoid competition among themselves, and thereby increase the price, is the very combination denounced by the statute, and is illegal. And being made in Missouri and to the extent of the Missouri concerns to be executed here, will be held to be void. And the fact that the laws of Illinois do not make such an agreement void, or if they do that fact cannot be adjudged because the statutes of that State were not introduced in evidence, will not prevent the courts of this State from adjudging it to be illegal; for the formation of the Illinois corporation to be the instrument of the parties to carry out their scheme, did not make their agreement an Illinois contract.
    3. --: -: Enforcing Loan. If the scheme out of which plaintiff’s claim arises and in which he participated was in violation of law, he cannot enforce his claim in a court of law, even though his claim be for a loan of money to the corporation formed to carry out the illegal scheme.
    4. CORPORATION: Liability of Stockholder: Money Loaned. tinder the laws of Illinois a subscriber for the capital stock of a corporation is liable to it and to its creditors for the unpaid face value of the stock. A corporation was formed by the owners of smelter furnaces to market the combined product of all; the products of each were to be sold to it at an agreed price, and in consideration of a written contract by each making the output of his smelter subject to the order of the corporation for two years it was authorized to issue to him a certain number of the shares of its capital stock, the number to be in proportion to the value of the product of his zinc furnace. Both plaintiff and defendant participated in this arrangement, and stock was issued to each with no other payment therefor than the contracts. Plaintiff loaned the company $100,000 for two years, without interest, to be used in paying the various stockholders for theiir products at the agreed scale price, and for doing that the company issued him nearly one-fourth the entire stock. Reid, that plaintiff was not in the attitude of a stranger oir creditor without notice, but a party to the plan of the corporate organization by which it was agreed that defendant should have his stock in consideration of the valuable contract he made to deliver to the corporation the output of his plant, and plaintiff cannot recover from defendant the amount of his unpaid judgment against the corporation, on the theory that defendant is liable because he has not paid for his stock, for the stock was paid for by his contract.

      5. ---- -: -: Contemporaneous Interpretation of Contract: Payment by Others.. Evidence that other stockholders had paid their share of the corporation’s debt to plaintiff should have been excluded. When the business is all ended and only settlements remain to be made such interpretation by the other stockholders as to whether the contract was that the stock was to be paid for in money or by the contracts, is a mere matter of opinion; especially, where, as in this case, there was an apparent reason why the others might have paid which did not apply to defendant.
    Appeal from St. Louis City Circuit Court.— Eon. John A. Blevins, Judge.
    Affirmed.

      Boyle & Priest, Edward T. Miller and T. E. Francis for appellant.
    (1) A stockholder of an Illinois, corporation is liable to a creditor thereof to, the amount of the unpaid balance due on his shares. E. S. Els. 1895, chap. 32, sec. 8; Coleman v. Howe, 154111. 458; Ailing v. Wenzell, 133 111. 264; Bates v. Gt. West. Del. Co., 134 111. 536. (2) The rights of stockholders and creditors of a corporation must be adjudicated according to the statutes and jurisprudence of the State which creates the corporation. Glenn v. Liggett, 135 U. S. 533; Allen v. Fairbanks, 45 Fed. 445. (3) The court erred in giving defendant’s instruction 3-d, in modifying plaintiff’s instructions 1 and 4, and in refusing plaintiff’s instruction 8. Authorities cited under' point I; Sprigg v. Nat. Bank, 172111.149. (4) Plaintiff’s knowledge that defendant had not paid for his stock at the time plaintiff became a creditor of the company would' not estop him from proceeding against defendant. Sprigg v. Nat. Bank, 172 111. 149. (5) This being a case in equity, this court will review the entire record, and will treat the . case as if it had been originated here and was to be heard for the first time. Lins v. Lenhardt, 127 Mo. 271; Robertson v. Shepherd, 165 Mo. 360. (6) The finding and judgment of the court is against the evidence and the weight of the evidence, and we submit that, on the whole record, the finding and judgment should have been for the plaintiff.

      Judson & Green for respondent.
    (1) While mere knowledge that a stock subscription has not been paid up in full will not estop a creditor who has extended credit while possessed of such knowledge from collecting his debts from a stockholder, yet an agreement between the subscribers that the capital stock is to be paid up' in a certain manner does estop any creditor who was a party to' such agreement from asserting that a subscriber who pays in the manner specified in the agreement is not thereby discharged from all further liability. Our courts have expressly so held: Woolfolk v. .January, 131 Mo. 620; Carp v. Chipley, 73 Mo. App. 35; 3 Thompson on Corporations, 3008. (2) The organization of the Missouri Metal Company induced and promoted by the plaintiff was avowedly for an illegal purpose.-' the suppression of competition between zinc producers of Missouri, Illinois and Kansas, who were parties to the agreement. It was therefore violative of public policy and statutes of Missouri, as well as of Illinois, and of the United States. Morawetz on Corp., sec. 758; Laws 1889', p. 96; Laws 1891, p. 186; Laws of Illinois, 1891, p. 206; Laws of Illinois, 1893, p. 192; 2 United States Statutes at Large, 1890; Fink v. Schneider Granite Co., 187 Mo. 244; Ford v. Chicago Milk Shippers’ Ass’n, 155 111. 166, 27 L. R. A. 298; Chicago W. & V. Coal Co. v. People, 214 111. 621, affirming 114 111. App. 75; People v. Sheldon, 139 LI. 211, 23 L. R A. 221; People v. Milk Exchange, 145 N. T. 267, 27 L. R. A. 437; United States v. Jellico Mountain Coal & C. Co., 46 Fed. 432; United States v. Coal Dealers’ Ass’n of Cal., 85 Fed. 252; United States v. Chesapeake & Ohio C. C'o.,. 105 Fed. 93; Northern Securities Co. v. United States, 193 U. S. 197. (3) The illegal purpose of the corporate organization to which plaintiff was a party is fatal to the cause of action. Morawetz on Corp., sec. 758; Metropolitan Lead & Zinc Min. Co. v. Webster, 193 Mo. 351; Williams v. Scullin, 59 Mo. App. 30; Irwin v. Williar, 110 U. S. 499; Gibbs v. Consolidated Gas Co., 130 U. S. 396.
   VALLIANT, P. J.

Plaintiff, a judgment creditor of an Illinois corporation, sues defendant, a stockholder, to recover the amount of his judgment, $7,645.16, on the theory that defendant is liable because he has not paid for his stock. In the inception of the corporation the stock now owned by defendant was subscribed for by one Ruggles, who paid nothing for it, but who assigned it to defendant. Under the laws of Illinois not only the subscriber to the capital stock but the individual to whom it is assigned is liable to the corporation and to a creditor of the corporation for the unpaid face value of the stock.

The pleadings and evidence show as follows:

In 1894 certain persons engaged in the manufacture of spelter or interested in companies engaged in that business, among whom were the plaintiff and defendant, came together in St. Louis and discussed a method of obtaining a better price for their product than it was then bringing in the market. To accomplish this purpose they agreed to form a corporation under the laws of Illinois to combine in one organization the owners of the zinc furnaces in the States of Illinois, Kansas and Missouri, to which organization was to be given the market control of the products of all those furnaces; that is to say, all the concerns going into the scheme were to sell their product to the corporation to be’ thus formed at a price regulated by a scale agreed on, and tbe corporation was to have the control of the product in the market, thereby avoiding competition among themselves and controlling the market for better prices, the profits derived from the better prices to go back to the producers in the way of dividends on their stock in the corporation to be formed. The capital stock of the corporation was to be divided and allotted to the constituent manufacturers in proportion to the amount of their relative and respective products.

The capital stock of the corporation was to be ■ $100,000,1,000 shares, $100 each. The plaintiff agreed to loan the corporation $100,000, without interest for two years, in consideration of which he was to have 220 shares of stock, that is, the 220 shares of stock were to compensate the plaintiff for the two years’ loan of his money. All the zinc producers in Illinois, Missouri and Kansas went into this scheme, except two in Illinois and one in Kansas. The agreement having been made, the promoters deputized certain persons to go across the river into Illinois to organize the corporation and they did so under the name of the Missouri Metal Company. Among the subscriptions to the capital stock was one for 180 shares by George A. Ruggles, who, the evidence shows, made the subscription with the purpose of transferring the stock to the defendant and did so*, Ruggles paid nothing for it and received nothing for it; nothing was ever paid for the stock to the corporation unless the contract hereinafter mentioned is to be adjudged, as between the parties to this suit, a payment.

The stock was allotted to the several persons and companies entering into' the scheme as above mentioned, that is, 220 shares to the plaintiff for the use of his $100,000 for two years, and the remaining 780 shares to the manufacturers in the proportion of their relative and respective products, and it was so subscribed by them or by others for them and transferred to them. It seems, however, that, although all the stock was taken in this way, yet the certificates were not issued; they were signed, but all left in the stock certificate book, and so remained up to the date the corporation went out of business.

The corporation entered upon the business for which it was created, the constituent manufacturers turning over to it the products of their furnaces as agreed, but its operations did not meet the hopes of the promoters, and therefore after a few months of unsuccessful trial the stockholders resolved to sell the metal then on hand at the then prevailing market price, or lower if necessary, and wind up the business of the concern and quit, and this was done. All the stockholders voted in favor of that resolution except the defendant who opposed it. ' The plaintiff testified that in a little while thereafter the market took a turn for the better and if they had held on, as the defendant advised, the corporation would have proved a success. But howsoever that might have been, the corporation went out of business and ceased efforts, leaving its debt to the plaintiff or part of it at least unpaid. Plaintiff offered testimony tending to show that the other stockholders paid their proportion of the debt and that the amount left unpaid, which is the amount here sued for, is the proportion that would fall to defendant to pay if he is liable. The theory of the defendant is that as between the plaintiff and himself and all parties to the scheme the plaintiff paid for his stock by the loan of his money without interest to the company and the defendant paid for his stock by executing and delivering to the corporation his' contract by which he gave the corporation the sole right to market the output of his zinc furnaces for the term of two years and each of the other manufacturers of zinc did the same.

The records of the corporation show that in the meeting organizing the corporation, at which the plaintiff was present and presided, this resolution was passed: “Resolved that on the payment by Alexander Enston to this company of the sum of $100,000', as a loan without interest for the term of two years, until January 1, 1896, the officers of the company are hereby authorized to issue a certificate for 220 shares of the capital stock of said company in lieu of interest on said loan to said Euston. ’ ’

And in reference to each of the other stockholders was this resolution: “Resolved that on the signing and delivery of a certain contract by----to this company, dated January 27, 1894, by which the output of smelter of the---Zinc Company is made subject to the order of the Missouri Metal Company for two years, the officers of this company are hereby authorized to issue to------shares of the capital stock of said company.”

It was under a resolution like that, with the name of the defendant inserted in the blank, that the 180 shares were ordered to be issued to defendant and under resolutions of like tenor and effect the shares of the other stockholders were authorized to be issued to them respectively.

On the books of the corporation, in the journal, the capital stock is charged to contract for $100,000, that is, the entries in the journal show that the capital stock was fully paid by the contracts of the several manufacturers of spelter. The plaintiff introduced in evidence certain statutes of Illinois showing that under the laws of that State both the subscriber for the stock and the assignee thereof were liable to the corporation and its creditors for the unpaid amount of its face value.

The defendant contended in the trial court and contends here that the plaintiff cannot recover for two reasons, first, that the corporation was organized for the purpose of suppressing competition between the zinc manufacturers of Missouri, Illinois and Kansas, and to regulate and fix tbe price of that commodity-contrary to tbe statute law of those States and of the United States, and, second, that, as between the plaintiff and defendant and the other parties in the scheme, the defendant’s contract by which he agreed to give the corporation the control of the output of his manufactory for the term of two years was full payment for the stock.

The trial was by the court without a jury. The court at the request of the parties gave certain declarations of law in the nature of instructions, from which it appears that the court held the opinion that under the evidence the plaintiff was entitled to recover unless the court should find for the defendant under the following instruction or declaration given at the request of-the defendant, to-wit:

“The court declares the law, that the party participating in the organization of a corporation and in the allotment of the capital stock thereof in consideration of contract obligations assumed by the parties to whom the same is allotted, cannot thereafter claim that such stock is in fact unpaid, but he is bound by the agreement to which he is a party, and has not the standing of a creditor who gives credit to- the corporation on the faith of an actual payment in cash for the capital stock; if, therefore, it appears from the testimony that it was agreed between the plaintiff and the other parties, including defendant, who subscribed for the stock, or to whom the stock of the corporation was allotted, that the loan of capital by the plaintiff and the making of the several contracts by the other parties for the control of the product of their respective furnaces should be deemed a payment of the capital stock allotted, and that defendant duly executed his contract as provided by said agreement, then tbe court declares that in that event plaintiff is bound by said agreement and tbe capital stock allotted to defendant was full paid as between him and tbe plaintiff and tbe other parties to said • organization, and plaintiff therefore cannot recover in tbis action. ’ ’

Tbe finding and judgment were for the defendant and tbe plaintiff appealed.

I. Tbe agreement add transactions out of wbicb tbis controversy has arisen occurred in 1894. At that time under the statute law of tbis State it was declared that any person or corporation entering into an agreement or combination with another ££ to regulate or fix the price of any article of merchandise or commodity” should be ££ deemed and adjudged guilty of a conspiracy to defraud, and be subject to penalties as provided in tbis act.” [Laws 1891, p. 186.] And in section 4 of -that act it was declared that: “Any contract or agreement in violation of any provision of tbe preceding sections of tbis act shall be absolutely void.”

Tbe purpose for wbicb tbis corporation was conceived and formed was tbe very purpose denounced in that act; tbe plaintiff’s own testimony so shows. But it is said in tbe brief for plaintiff that that fact cannot avail tbe defendant here because tbis is an Illinois corporation, therefore not to be judged by a Missouri statute. In tbe brief for defendant reference is made to Illinois statutes which it is said are to tbe same effect as our own, but in behalf of plaintiff we are told that we cannot consider those Illinois statutes because they were not offered in evidence.

If tbe life of tbe Illinois corporation was herein assailed it would have to be adjudged by tbe Illinois law and that law would have to be pleaded and proven. [McPike v. McPike, 111 Mo. 216.] But no attack is made on tbe Illinois corporation; so far as tbe record in this case shows that corporation was organized in strict conformity to the laws of that State and there is nothing on the face of the corporation record to show that it was-organized for an unlawful purpose. The corporation is not the plaintiff in this suit and the defendant is not attacking the validity of its organization; this is a controversy between two individuals growing out of their relative and respective dealings with that corporation. The evidence shows that these gentlemen, who were all interested in the manufacture and sale of spelter and desiring for their own peeuniary profit to advance the market price of their product, came together in Missouri and entered into an agreement to put into the hands of one concern all the product of their furnaces for the term of two years to be by that concern sold and the profits divided among them in the proportion of their respective holdings. This agreement was made in Missouri and was to be, partly at least, that is, to the extent of the Missouri concerns involved, executed in this State; the corporation was but the agent or instrument to carry out the purpose of the agreement. Can we say that our statute which denounces a scheme of this kind can be evaded by the very simple method of employing a foreign corporation as the agent to carry it into effect? If so it would he better to repeal the statute because any statute that cannot be enforced, or that can be so easily evaded, breeds contempt of law and lawful authority.

The formation of an Illinois corporation to- be- the instrument of the parties to carry out their scheme no more made it an Illinois contract than if they had selected some individual citizen of Illinois for their agent.

The corporation in this instance was a mere tool, and the part that it took in the transactions out of which this suit has arisen was mere form; the real parties were those who entered into the combination. to cease competition with, each other and combine “to regulate or fix the price” of their products. We hold that the scheme out of which the plaintiff’s claim arises was in violation of law and therefore cannot be enforced in a court of law.

II. The second defense is that the defendant paid for his stock by the contract which he executed' and delivered to the corporation, whereby he gave the corporation the control of his product for the term of two' years, that is to say, as between this corporation and the plaintiff and this defendant the contract is to be adjudged as payment. That was the view taken by the trial court.

Whether the defendant would be liable to an outside creditor of the corporation or one who had dealt with it not knowing the terms on which the stock had been issued to the defendant is not a question in this case. The question here is whether the defendant is liable to this plaintiff who was a party to the original scheme to carry out which the corporation was formed, who was a promoter and organizer of the corporation.

The plaintiff as a witness testified that it was his understanding that the stockholders were to pay for their stock in money or money’s worth, and that the contracts executed by them for the delivery of their product to the corporation to be pooled and sold had nothing to do with payment for the stock. The defendant testified that his understanding was that the contract was in payment of his stock.

The plaintiff offered evidence to show that the other stockholders had paid their share of the debt, the defendant alone refusing. The court rejected that evidence and we think properly so, because, whilst the interpretation that parties to a contract, vague or doubtful in its meaning, put on it while its performance is under way, is some evidence of its meaning, yet when the business is all ended and settlements' only remain to be made such interpretation then becomes a mere matter of opinion and is of little, if any, value. But in this case there was a very good reason why the other parties to this contract, or enterprise, might have felt in honor bound, if not in law, to pay the plaintiff their share of his loan to the corporation. They had agreed, to go into it for two years and the plaintiff loaned his money to the concern for that period, but after they had tried it for a few months they became discouraged and resolved to dissolve the corporation and quit, and they did so. This defendant alone opposed the abandonment of the scheme, he insisted on going on but was voted down, he was not therefore under the same moral obligation to adjust the losses that his companions were.

This corporation was organized by the parties to the original pooling scheme, all the stock was to be owned by them and was owned by them. Whatever its nominal corporate powers may have been, whatever its public proclamation of purpose may have been, it was in fact organized for one purpose only, viz., to market the combined products of those zinc manufacturers. The stockholders were to be the customers of the corporation, its whole object was to handle their product; it was not contemplated that the corporation would have dealings with the public except to- sell those products to whoever would buy. The corporation was, by the terms of the contracts with these manufacturers, to pay them for the zinc they produced a certain price' calculated on the actual cost of production and a certain per cent added to make a level rate, and for funds to pay this price the plaintiff agreed to loan the concern $100,000, for two years. The assets with which the corporation was to go into business consisted of this two-year loan and these two-year obligations of the manufacturers; they were both valuable assets, they constituted the corporation’s whole stock in trade and the corporation paid for them. What did it pay? The records of the corporation show that for the use of the money for two' years 220 shares of stock were to be issued to the plaintiff and in consideration of the contract of each of the manufacturers a certain number of shares of stock were to be issued to him, the number to be in proportion to the capacity of his zinc furnaces, the number so apportioned to the defendant was 180 shares. ' The language of the resolution under which the plaintiff obtained his stock and that under which the defendant obtained his, were of the same purport; in the one it said that for the use of the money without interest for two years the plaintiff was to have 220 shares, and in the other it 'Said that for the right granted to the corporation by the contract to have the market control of his product for two years the defendant was to have 180 shares and a like resolution expressed the consideration paid by the corporation to each of the other manufacturers for the right to control the product of his furnaces. It was a sale by the manufacturer of a valuable privilege to the corporation for which the seller was paid in stock; if the stock he received was to be by him thereafter paid for in money then he received nothing for that which he sold. It cannot be said that he was to look for his pay for the privilege sold to prospective dividends on the stock, because if he was required to pay money for the stock the dividends, if any should come, would be the product of the money he so invested, and he would have received nothing for the privilege he sold to the corporation.

Not only do the records of the proceedings of the stockholders’ meeting show that the stock was issued in payment for the privileges granted by the manufacturers, but the books of account kept by the corporation show that the stock was charged as paid in that way.

Whether the right to the market control of the output of defendant’s zinc works for the period of two years was worth the price the corporation paid for it, that is, the stock at its face value, is not a question in this case, because we are here concerned only with the rights of those who were themselves parties to the contract and they cannot raise that question. The plaintiff not only knew the terms on which the stock was issued to the defendant and the- other manufacturers, but he was himself the active officer of the corporation making the contracts; he was the president of the company and presided at the meeting when the contracts were made, that is, when the resolutions were adopted specifying the terms on which the stock was to be issued to himself, to the defendant and to the others.

A stranger dealing with a corporation has a right to presume that it has issued or agreed to issue its stock only for money or money’s worth for its full face value, and if the corporation has' issued its stock for less such stranger, becoming a bona fide creditor, failing to obtain- satisfaction from the corporation, may have redress on the stockholders to the extent that the stock has not been paid for in full value. [Shickle v. Watts, 94 Mo. 410; Van Cleve v. Berkey, 143 Mo. 109; Berry v. Rood, 168 Mo. 316.] But this plaintiff is not in the attitude of a stranger or a creditor without notice, he was a party to the plan of the corporate organization by which it was agreed that the defendant should have this stock for the consideration of the privilege he sold to the corporation and therefore as to the plaintiff it must be adjudged that the defendant . has paid for his stock.

The trial court had the correct view of the law of this case. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    EDWARD B. HAGER v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS, Appellant.
    Division One,
    November 27, 1907.
    MASTER AND SERVANT: Defective Car: Servant’s Knowledge. Where the servant, a switchman of mature years and experienced in his employment, knew that his master’s business was to handle all kinds of cars, defective and otherwise, and that the car which caused his injury was “off center” and defective, and he possessed all the knowledge his master possessed both as to its defective condition and the danger incident to handling it, and so knowing deliberately of his own choosing mounted the car and attempted to ride thereon, and as it leaned to one side as it was being hauled was struck by a bridge pieir as he was attempting to leave it, he cannot recover.
    Appeal from St. Charles Circuit Court. — Ho». H. W. Johnson, Judge.
    Reversed and remanded {with directions).

      J. E. McKeighan and William B. Gentry for appellant.
    (1) The demurrer to the evidence should have been sustained because none of the negligence charged in the petition was shown. A plaintiff can never recover in a negligence case without proving some negligence on the part of defendant. Harper v. Railroad, 187 Mo. 575; Chandler v. Gas Go., 174 Mo. 321. (2) The demurrer to the evidence should have been sustained because plaintiff was guilty of negligence which directly contributed to cause his own injury in undertaking to ride on the car which he knew to be a crippled car, and in swinging himself down over the side of the car without looking down to see whether there was a ladder there or not, and in remaining in the position that he was occupying at the time of his injury with his back towards the bridge, and his left leg hanging over the side of it when he knew that the car was crippled, and as he stated, he was afraid the car might run off of the track because of its crippled condition. (3) The demurrer to the evidence should have been sustained because plaintiff assumed the risk of injury resulting from riding on such a car, he having full knowledge of its condition. Brown v. Railroad, 59 Kan. 70; Yeaton v. Railroad, 135 Mass. 418; Flannagan v. Railroad, 50 Wis. 462; McClosker v. Railroad, 84 N. Y. 74; Arnold v. Railroad, 125 N. Y. 15; Railroad v. Hennessey, 96 Fed. 713; Railroad v. Ward, 61 111. 130; Fkaker v. Railroad, 32 Minn. 54; Watson v. Railroad, 58 Tex. 434; Kelley v. Railroad, 35 Minn. 490; Railroad v. Mayo, 14 Tex. Civ. App. 253.

      Bishop <3 Cobbs and A. B. Taylor for respondent.
    (1) The rule of law is that where a master provides a servant an appliance for the work of his employment, the servant may use it, relying upon the assurance that it is reasonably fit and safe to work with in such employment. And unless the appliance is so defective and dangerous that a reasonably prudent person in the same circumstances would not use the appliance, he is not negligent in using it, as a matter of law, in doing the work of his employment. Hamilton v. Mining Co., 108 Mo. 376; Swadley v. Railroad, 118 Mo. 278; Pauck v. Beef Co., 159 Mo. 478; Cole v. Railroad, 183 Mo. 90. (2) Plaintiff swears that in the course of his duty he wouldn’t and couldn’t tell that the car leaned, so that it might collide with the post. This condition of the record annihilates appellant’s contention. Appellant cannot find plaintiff negligent unless he assumes that he knew that the condition of the car was such that be couldn’t safely undertake to. descend from it in the usual way to do his duty. Counsel has no just ground for such assumption, and for these reasons: 1st. .Plaintiff swears he did not know and in the discharge of his duties wouldn’t know that the car was in a condition that would make it collide with the bridge post; that it was the duty of the foreman, Hugg, to‘ know this fact. Nobody disputes this evidence. 2d. When Hugg, as vice-principal, directed the crew to take the car in question to the yard in question, it was an assurance from the master, without more, that the car could be so taken by the usual and ordinary method, and with safety to the employees whilst doing so. Sullivan v. Railroad, 107 Mo. 78; Bane v. Irwin, 172 Mo. 316. If plaintiff did not know of this danger, how can a court declare in the face of a finding by the jury to the contrary that he was guilty of negligence in not knowing of the danger? (3) The servant cannot assume a risk which arises by reason of the negligence of the master. Blanton v. Bold, 109 Mo. 75 ; Settle v. Railroad, 127 Mo. 343; Pauck v. Dressed Beef Co., 159 Mo. 477; Cole v. Railroad, 183 Mo. 90; Butz v. Murch Bro., 199 Mo. 286.
   GRAVES, J.

Plaintiff instituted action in the circuit court of the city of St. Louis against the defendant, the purpose of which was to recover damages for personal injuries. By change of venue, the case went to St. Charles county, whereupon a trial, without evidence upon behalf of defendant, was had; the plaintiff obtained judgment for $5,000, from which defendant appeals. The defendant having stood upon its demurrer to the testimony, and that being practically the only question urged here, a full statement of the case is thereby required. The petition charges negligence as follows:

“That on the 24th day of November, 1902, plaintiff was, and for more than a year prior thereto had been, in the employ of defendant as switchman; that at said time one Francis J. Hugg was a conductor in the employ of defendant and authorized and empowered to direct and control plaintiff in and about his said work as a switchman; that as a part of his duties as a switch-man plaintiff was required to couple and uncouple engines and cars, to attend to the switching or changing of location of the same from place to place, and to ride upon the front car when two or more cars were being pushed from place to place in defendant’s yards. That on said 24th day of November, 1902, under the orders, directions and control of the said conductor, Hugg, plaintiff was attending to the switching of a car in defendant’s yards which was being pushed by one of defendant’s engines; that said car was out of repair and in a dangerous condition and was not in place or plumb on the tracks, as was well known at the time to said conductor, Hugg; that by the direction of said conductor, Hugg, and as was required of him by the rules of defendant, plaintiff placed himself upon the top of said car while the same was being pushed from place to place in defendant’s yards; that by reason of the negligence and carelessness of defendant’s servants in charge of, and under the direction and control of said conductor, Hugg, said car was pushed into and against and caused to collide with a post or a bridge which crossed defendant’s yards at Twelfth street, in the city of St. Louis; that by reason of said collision, caused by the negligence and carelessness of defendant’s servants as aforesaid, plaintiff was caught between said car and said bridge post; that by reason of being so caught his left leg was so mashed, bruised and lacerated and the bones thereof so mashed and broken as to require the same to be amputated near the thigh; that the heel of his right foot was so mashed, bruised and lacerated and the bones thereof so mashed and broken as to require the same to be amputated; that the leader of his right foot was severed so as to cause the entire loss of the use of the same; that his left arm was severely bruised and lacerated and that plaintiff was greatly bruised upon his body.
“Plaintiff avers that said injuries were caused by the negligence and carelessness of defendant and by reason of said defective condition of said car and in requiring him to ride upon said car while it was in said dangerous condition, and the negligence and carelessness of said conductor, Hugg, in ordering him upon said car while it was in said dangerous condition, and by reason of the negligence and carelessness of defendant’s servants in causing- said car to collide with said bridge post in the manner above stated, and by reason of the carelessness and negligence of defendant in placing the track of the switch, on which the said car was being moved, so close to said bridge post as to make said collision possible.”

We quote fully from the petition and answer in view of what is to follow in the undisputed evidence. The answer is:

“For answer to plaintiff’s amended petition, defendant denies each and every allegation therein contained.
“Further answering, this defendant says, that whatever injuries the plaintiff sustained on the occasion complained of, if any, were caused by his own negligence directly contributing thereto in this, to-wit: that on the occasion complained of in plaintiff’s amended petition plaintiff negligently undertook to ride on a car which plaintiff knew, or by the exercise of ordinary care would have known, was in bad repair and in a dangerous condition,. so that it was not safe for any one to ride upon; and while plaintiff was so negligently riding upon said car he negligently placed himself in such a position on said car that he could not pass the pier of the bridge in defendant’s yard; and while plaintiff was so on said car he negligently failed to use ordinary care‘to observe his surroundings and to watch for said pier of said bridge, and negligently failed to use ordinary care for his own safety.
“Further answering, defendant says that the dangers incident to riding upon said car as plaintiff was doing were open and obvious, and by continuing to so ride upon said car plaintiff assumed the risk of injuries incident thereto.”

By the evidence, it appears that the defendant, whilst a railroad corporation, is really engaged in the duty of switching cars. Cars, loaded and unloaded, good and defective, are brought into the city of St. Louis, by the railway companies centering there. It would appear that each company had a place or switch where it delivers the cars coming in over its line. These cars are then taken, whether in good or bad condition, and delivered by the defendant to various places upon its line. If the cars are defective they are either returned to the company bringing them in, or are taken to certain points for repair. In other words, one of the duties of defendant, and its divers switching crews, is to handle defective and disabled cars, and to that end the cars to be handled are examined and labeled with cards. These cards are conspicuously posted and indicate the defective condition of the car, so that a switchman handling the car can, by examination of the card, know the condition of the car. Plaintiff in this case was one of a switching crew of five, including the engineer and fireman. One Hugg seems to have been the foreman of the crew, but so far as actual work was concerned, did about what plaintiff did. Plaintiff was riding on what he knew to be a car out of repair, a “bad order” car, to use the expression of the craft, and having in view the “chocking” of the car at a certain point he undertook to alight therefrom by swinging off from the side, and in doing so his leg and foot were caught between the leaning car (for it evidently leaned to one side) and an upright pier or part of a bridge. The conditions and plaintiff’s knowledge thereof are best described in his own language:

“Q. Mr. Hager, I understand you to say you had been working for the Terminal Railroad Association in St. Louis about eighteen months? A. Something like that; I would not be sure, exactly.
“Q. Had you been on the day crew or night crew? A. I had been on both; part of the time one and part of the time another.
“Q. So you had frequently run over these yards with a freight train? A. Yes, sir.
“Q. The train you were handling was made up of an engine and several freight cars? A. Yes, sir.
“Q. Five or six or seven? A. I don’t remember the number, about that.
“Q. You think not less than five nor more than seven, about that? A. About that, something.
“Q. You first found this crippled car about Twenty-fourth street, did you say? A. What we call the Twenty-third Street Yard, where the Frisco delivers to the Terminal.
“Q. It was a car that had just come over the Frisco road, was it? A. I couldn’t say whether that or some other road threw it over there, but it was on those tracks.
“Q. It was on the Frisco Railroad tracks? A. Yes, sir.
“Q. What, if anything, first attracted your attention to the fact that that car was out of order? A. Bad order card.
“Q. Where did you see that bad order card? A. Tacked on the car.
“Q. Describe the bad order card to us. A. It’s a red card and had marked on it ‘bad order,’ and then tells what —
“Q. It has certain words printed on it and a blank space by the side of that to write the directions on? A. Yes, sir.
“Q. That is to say, it would say, ‘This car is. in bad order,’ or words to that effect, and leave a space there for the inspector to write what the trouble was? A. Yes, sir.
“Q. Would there be anything on there to designate where it was to go, whether to the repair track? A. The orders would tell that; it would be marked for Sixteenth street or send back to. Frisco.
“Q. The foreman has that? A. Yes, sir.
“Q. The bad order card you speak of was a card in size and appearance similar to the one I hold in my hand, was it? A. Yes, sir.
“Q. And' had printed on it in big black letters up near the top the words ‘bad order,’ is that so? A. Yes, sir.
“Q. Then below were the words ‘car number,’ and a place for the number to be written in, wasn’t it? A. Yes, sir.
“Q. And then a place for the initials with the word ‘initial’ there and a blank following? A. Yes, sir.
“Q. And the word ‘date’ and a place to write the date in? A. Yes, sir.
“ Q. And then below were these words, ‘Send this car to,’ then there was a blank line there, and the words, ‘repair track’ were printed after it, wasn’t they? A. Yes, sir.
“Q. And on that blank line they would write whether Sixteenth street or where? A. Sixteenth street or send back to Frisco.
“Q. Then below were printed the words, ‘For the following repairs,’ were they not? A. Yes, sir.
“Q. And then following two or three blank lines on which the inspector would write what was necessary to be done on the ear, is that correct? A. Yes, sir.
“ Q. Then below were the words ‘chargeable to,’ and a place left blank to state whether one railroad company or another railroad company, whoever the owner of the car was? A. I couldn’t tell you about that.
“ Q. "Well, that’s immaterial, but it was j ust ab out such a card as this I hold in my hand? -A. Yes, sir. I think it was one similar to that; the looks and everything is the same.
‘ ‘ Q. Now, on that bad order card was a statement the car was off center, wasn’t it, do you remember that? A. I didn’t read the card.
“Q. You didn’t read the card? A. No, sir, I was going back past it; the foreman does all that kind of work, looks over the train and everything and marks the cards where they go and everything; he does' that from the switch list.
“Q. You saw the red card tacked on there? A. Yes, sir.
“ Q. You knew as soon as you saw it that the car was in bad order? A. Yes, sir.
“Q. Now, you passed the full length of the car on the ground, did you, before coupling on to it? A. Yes, sir.
‘ ‘ Q. Who' made the coupling, did you when you first picked up the car? A. No, the man following the engine made the coupling.
“Q. What part of the train was it put into at that time, at the end or in the middle or near the engine when you first picked it up ? A. Why, it was next to the engine.
“Q. And did the engine go forward or backward with it then? A. Backward.
“Q. And went down to' what point before it stopped and changed? A. Twenty-first street.
‘Q. Then who uncoupled it and made the change ? A. I don’t know; I think probably it was Hugg; I won’t say for sure I know that, I don’t.
Q. "Where was the car when you first discovered the bad order card; was that before you picked it up at all you saw the bad order card? A. Yes, sir, that’s when it was at the Frisco yards.
“Q. At the Frisco yards? A. Yes, sir.
“ Q. Then when you discovered it was in bad order and passed along by it you could see it was leaning to one side, couldn’t you, Mr. Hager? A. Well, you couldn’t without just getting down and looking right point blank at it; you couldn’t notice enough to tell whether it was leaning or not; you could tell it was off the center, but whether to- one side or the other, you couldn’t tell that.
“Q. We are- none of us railroad men here. Explain what you mean by being off center; tell the jurors how does a car look and what’s the matter with it when it’s off center? A. The truck sets right in there, a pin goes down the center of the truck.
“Q. That’s about the center of the car? A. Yes, sir, and this pin goes down through the body of the car and just fits down into the truck underneath to let the truck turn and still let the body of the car not turn with it, you know; something on the style of a wagon, just to turn around, so as to let the bed of the wagon turn, you know?
“Q. Somewhat similar to the king bolt of a wagon? A. Yes, sir.
‘ ‘ Q. When you say off center you mean that' pin is out of place or broken or bent? A. It’s generally knocked out; when we call off the center it’s clear out.
“Q. You did’nt notice in this case whether the pin was simply bent or clear out? A. No, sir.
‘‘ Q. You could see it was off center, couldn’t you? A. Yes, sir.
“Q. When you say it was off center, what was there that revealed to your eye the facts from which you concluded it was off center? A. The trucks were setting hack a little too far.
“Q. And the car itself was leaning somewhat? A. Not that I noticed any, no, sir.
“Q. Well, you have handled cars before that were off center? A. Yes, sir.
‘ ‘ Q. And isn’t it a fact that a car that is off center is almost sure to lean when you run the train? A. Well, no, not all the time, it may be off center and I have hauled cars a mile or two off center and didn’t lean any.
‘‘ Q. But it’s a matter of frequent occurrence they do lean when off center? A. I never noticed that it was, I wouldn’t say it was.
“Q. When they are off center you can’t tell just what they are liable to do when they are off center; that is to say, they may remain straight or lean to one side or may drop at one end? A. It’s liable to drop at one end; I never saw a car lean, though.
“Q. Never saw one lean before? A. No, sir.
“Q. You have handled a good many cars that were off center? A. Yes, I expect I have handled a dozen or two of them at different times.
‘ ‘ Q. You say you took the car up at Twenty-third street and carried it down to Sixteenth or where when you made that change? A. Twenty-first street.
1 ‘ Q. There yon made the change and put the car at the east end of the train furtherest from the engine? A. Yes, sir.
“Q. Did Mr. Hugg explain to you at the time why he did that? A. He didn’t say anything about it at all why he done it. ■
‘ ‘ Q. Did you know why it was done ? A. I know, yes.
“Q. "Why was it? A. He done it so it would he the next car to pick up when we went around and he wanted to shove, it to the Sixteenth street repair-shop'.
“Q. Your idea was to go to Twelfth street and stop and cut the engine loose and come hack on another track and run around it? A. Yes, sir.
“Q. And switch over and couple on the east end? A. Yes, sir.
“ Q. And then go down to the Sixteenth street repair-track and there drop it for repairs, that was the idea, wasn’t it? A. Yes, sir.
“Q. You knew that? A. Yes, sir.
“Q. You knew it then, didn’t you; you knew that was what was going to be done; you understood that? A. Yes, sir.
“Q. Now, this car that you got upon was a stock car, wasn’t it, this defective car? A. Yes.
“Q.' Where were you in the yards when you first got on to that car; was it after that change had been made you got on it? A. Yes, at Twenty-first street.
“Q. You and Hugg both got on it? A. Both got on it, yes, sir.
“Q. Had you previously ridden on one of the other cars when you picked that up at Twenty-third street; you didn’t get on the car, did you, when you first picked the car up; you didn’t get on that crippled car, did you, you and Hugg? A. I did after a while, yes; Hugg, I think, was on the front end of the engine or the end of the engine.
“Q. And you got on the crippled car when you first picked it up at Twenty-third street, did you? A. I was on it for a while, yes, sir.
‘ ‘ Q- And you got off because you noticed the car was in a crippled condition and didn’t feel secure in riding on it, wasn’t that correct? A. I was afraid it might accidentally run off the track, yes, sir.
££Q. Because it was off center, that was the reason, wasn’t it? A. Yes, marked bad order.
“Q. Marked bad order? A. Yes, sir.
££Q. And you knew it was off center? A. Yes, sir.
££Q. And you were afraid some accident might happen and therefore you got off it, didn’t you — you said so a moment ago? A. At Twenty-first street?
££Q. Yes. A. Yes, sir.
“ Q. Then where were you when you got back on to the car? A. "Well, I couldn’t tell'you just the exact place; it was somewhere near Fourteenth street; I wouldn’t say whether above or below.
“Q. Did you climb up on it from the ground or step over from another car? A. Stepped from another car.
“Q. It was then the car furtherest east, wasn’t it? A. Yes, sir.
££Q. And immediately before you stepped on it you had been riding on the car just west of it, hadn’t you? A. Yes, sir, the next car west.
“Q. Where were you' when you got on that car immediately west of the crippled car; whereabouts did you climb up on to that car? A. Why, I was on the main track.
££Q'. About what street? A. Somewhere near the vicinity of the power house there.
££ Q. How far is that from Fourteenth street; how many streets from Fourteenth street, several blocks? A. Let’s see, four or five.
££Q. Four or five blocks, SO' that for four or five blocks you and Hugg both rode on the car immediately west of the crippled'car? A. Yes, sir.
££Q. And then when you got to about Fourteenth street you stepped over on to the crippled car and walked the length of it, did you? A. Yes, sir.
“Q. And started to climb down this ladder? A. I didn’t start to climb down until after we were shoved pretty well down in the yards.
“Q. You got in fifty, seventy-five or a hundred feet of the pier of the bridge when you started down? A. Yes, sir.
“Q. You knew at the time, and knew all the time, this was a stock car, did you not? You noticed that when you picked it up? A. Yes, sir.
“Q. And stock cars have slats on the sides of them, haven’t they? A. Yes, sir.
“Q. And spaces between the slats so as to let the cattle have air? A. Yes, sir.
“Q. And all stock cars are built that way, aren’t they? A. Yes,' sir.
“Q. Well, now, had you ever handled any of this same series of cars before this, Swift láve Stock cars? A. I suppose I have, but I never paid particular attention to that; I handled all kinds of cars.
“Q: And you had frequently seen cars before, as I understand you, where the top or roof hand-grab or hand-hold was parallel to the side of the car and the ladder was on the end of the car; you had seen that before? A. Yes, sir.
“Q. You had frequently seen that? A. Yes, sir; I don’t think there is any railroad man but what had.
“Q. And you had been misled that way before, hadn’t you, swung down and found no ladder on the side and then switched to the end? A. Once or twice before, yes, sir.
“Q. And you think that’s a matter of common experience to railroad switchmen? A. I don’t know; it happened to me a couple of times before.
“ Q. Now, when you started down the side of that car you didn’t look down to see whether a ladder was there or not before starting down, did you? A. No, sir; I put my foot over and let it go.
“Q. Took hold of the hand-grab of the roof and . swung down, is that correct? A. Yes, sir.
“Q. Isn’t it a fact that they never build stock cars with the ladders on the side, so far as your observation has gone? A. Oh, no; stock cars have side ladders.
“Q. Isn’t it a fact they are always on the end because of these slats there? A. Oh, no; stock cars have side ladders.”

One cannot read this evidence without concluding (1) that the duty of the defendant and its employees was to remove and transfer cars, whether said cars were in good or bad repair, (2) if such cars were in bad condition that such cars were either returned to the railroad company bringing in the same, or taken to a place for repairs, (3) that cars, if defective,were labeled .with cards, indicating the defects, (4) that the car upon which plaintiff was' riding when injured was defective, and was marked as defective, and known to be defective by the plaintiff, (5) that its condition was not only known to plaintiff, but that it was such that, for a portion of the trip, he did not and would not ride upon it, (6) that Hugg, the alleged conductor, and by way of argument, vice-principal, did not and would not ride upon it, (7) that the plaintiff had and possessed all of the knowledge which the master possessed as to this particular car, and the dangers incident to the handling thereof, (8) that the plaintiff knew and understood that defective cars, of different and divers kinds, had to be handled by the defendant in the course of its business. Now, with these conceded facts, should there be liability in this ease? It becomes not so much a question of law, as it is the application of the law. We have here a servant, who by reason of his employment, was to handle defective as well as sound cars. We have here a master who has performed the full measure of his duty, hy marking, in plain terms, the condition of the car. We have here a servant who admits that he knew the condition of the car. The question is whether a servant, who hy reason of his employment is required to handle both defective and sound ears and is (admittedly) advised of the condition of the car being handled, can recover? We think not. If there was danger in this particular car, the servant was as fully advised as was the master. In handling cars of this character he, as well as the master, understood that such, in the business performed by the master, had to be handled. The servant, a man of experience, knew the dangers of his employment, and had personal knowledge of the apparent dangers accompanying the handling of this particular car. If the car had been run in upon him without knowledge' of its condition, the case might be different. But here we have an admitted knowledge of the condition. Plaintiff knew that the car was “off center,” and by his experience must have known the dangers incident to the handling thereof. Knowing that the master was bound to handle defective cars, he was obligated to look out for such cars. But not placing this opinion upon that ground, the plaintiff in this case was fully advised as to the character of the car which he was handling, at least as much so as the master, and under no theory of the law can he recover. Giving to plaintiff the broadest theory to which he is entitled, we can discover no legal principle under which his case should have been submitted to the jury. Accident and consequent injury do not authorize a verdict. Under the evidence of this case it was the plain duty of the trial court to have directed a verdict for the defendant. The case will therefore be reversed and remanded with directions to enter judgment for defendant.

All concur.