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    HENRY P. HOF v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    July 3, 1908.
    1. PLEADING: Two Causes of Action: Motion to Elect: Waiver. Conceding, without deciding, that the petition contained two causes of action, one for common law negligence arising eos delicto, and the other arising eos contractu for a violation of pleaded ordinances in reference to speed of ears and a vigilant watch, it is held that defendant, hy not standing on its motion to elect and answering over, abandoned the motion to elect, . and cannot raise it again on appeal.
    2. NEGLIGENCE: Demurrer: Riding Upon Track. Plaintiff’s evidence showed that when he was within ten or twelve feet of the single car track, under ordinary circumstances, he could have seen the approaching car sixty or seventy feet away; but that there were two tall trees with long branches and heavy foliage standing near the curb which somewhat obstructed his view in the direction in which he was approaching; that an arc lamp was suspended above the crossing having a hood over it, which kept its brilliancy within a limited circle, yet its rays extended as far as the streets’ intersection; that a man on a horse, as he was, being inside the circle of light,- illuminating the four corners of the intersection and the whole space within, would be conspicuous for a long distance to the motorman of the car approaching from the darkness, while his own vision inside the blaze of light would, be dazzled in such a way as to make it difficult for him to- see beyond the limits of the circle; that he looked for approaching cars, but saw none until the one which struck his horse was right on him; that it was then approaching at a speed of from twenty-five to thirty miles an hour, without any signal of its approach. Held, that the demurrer to the evidence, on the ground of contributory negligence, was properly denied, on any one of the three issues of negligence, namely, common law-negligence without warning, excessive speed, and no vigilant watch.
    3. -: Loss of Money and Jewelry. A loss of money and jewelry hy plaintiff at the time of the accident, if the direct result of the negligent injury by the street car' company, and it is shown that the accident was the result of its negligence, may be recovered in the suit for personal injuries, and where there is some evidence that goes to show the causal connection between the accident and the loss of the money and jewelry, then the issue is one for the jury, under proper instructions.
    4. -: Erroneous Instruction: “Contributing to Cause Collision." The instructions should tell the jury that they must find that defendant’s negligence caused the injury and not merely contributed to it: And they should also tell them what facts caused it, and not leave them to conjecture. So that an instruction which did not tell the jury that if they found the facts stated therein caused the collision between the plaintiff’s, horse and defendant’s car and that plaintiff’s injuries resulted therefrom, but told them that if they found from the evidence-“that such negligence of defendant’s servants to use ordinary-care in running said car upon such crossing directly contributed, to cause said collision and injury to- plaintiff’s person and loss and injury to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car before and 'whilst going upon said crossing, and such care to avoid such collision and injuries, then plaintiff is entitled to recover,” authorized the jury to find that plaintiff was injured by the concurring negligence-of the servants in charge of the car and some unknown cause not stated in the petition or shown in the evidence, and was. calculated to mislead the jury.
    5. -: -: -: Invited by Defendant. And defendant is not estopped to complain of the error in this instruction by the fact that one of its refused instructions told the jury that if' they believe from the evidence “that the plaintiff was himself guilty of some negligence which directly contributed to cause his injuries and losses,” he could not recover. That instruction is correct and did not invite the error contained in plaintiff’s.
    6. ——: Speed Ordinance: Civil Liability: Theory at Trial. Appellant cannot shift its position on appeal. Having tried its. case in the court below on the theory that the city had authority to create a civil liability by enacting ordinances governing the speed of cars and requiring that a vigilant watch be kept for persons on the track or approaching thereto, it will not on appeal be permitted to insist that such ordinances were not binding on it until accepted by it. By introducing in evidence an ordinance showing that a speed of fifteen miles an hour was-permitted at the place of the accident, defendant waived its. right to insist that the speed ordinance was not binding upon it, and by asking an instruction on the question of a vigilant watch it admitted its liability under th'e Vigilant Watch Ordinance of the evidence showed its motorman had violated that ordinance.

      Appeal from St. Charles Circuit Court. — Hon. E. M. Hughes, Judge.
    Reversed and remanded.

      Boyle, Priest <& Lehmann and Geo. W. Easley for appellant.
    (1) The court erred in overruling defendant’s-motions to require plaintiff to elect upon which assignment of negligence he would proceed to trial, made-at the opening of the trial, and renewed at the close of plaintiff’s evidence in chief. It was also error to-admit the ordinance in evidence, so far as the vigilant watch provisions were concerned, without proof of its acceptance by defendant, as well as to instruct upon the same in the terms of plaintiff’s third instruction. The motions to elect should have been sustained. The-petition blends causes of action arising ex delicto with causes of action arising ex contractu. The Vigilant Watch Ordinance could only be passed under the power of the city to contract. City charter, art. 10, secs. 1, 2. It could not be passed under its power to legislate. City charter, art. 3, sec. 26; Path v. Railroad, 39 Mo. App. 452; Path v. Railroad, 105 Mo. 537; Senn v. Railroad, 106 Mo. 152; Moran v. Car Co., 134 Mo. 641; Byington v. Railroad, 147 Mo. 673; Murphy v. Railroad, 153 Mo. 253; Saunders v. Railroad, 153 Mo. 253; Holwerson v. Railroad, 157 Mo; 245; Anderson v. Railroad, 161 Mo. 411; Nellis on St. Rys., p. 306, sec. 10. The cases of Jackson v. Railroad, 157 Mo'. 621, and Waller v. Railroad, 164 Mo. 180 (S. C., 120 Mo-. 655), were cases under a speed ordinance and cannot be decisive of the principle here involved, and cannot be held to overrule the long lines of cases especially decided on the Vigilant Watch Ordinance. A rule established and followed for a long series of years cannot be fairly overruled by inference or construction from rulings on questions involving entirely different propositions. There is a very broad distinction in the exercise of these two powers. One is public and, general, the exercise of sovereignty; the other, private and proprietary. One legislative, the other contractual. State ex rél. v. St. Louis, 145 Mo. 572; Illinois Trust Co. v. Arkansas City, 76 Fed. 282; Pike’s Peak Power Co. v. Colorado Springs, 105 Fed. 1; Selfzenger v. Tarn-aqua, 187 Pa. St. 539; Schaub v. Lancaster City, 156 Pa. St. 362; Weston v. Syracuse, 158 N. T. 274. If these positions are correct, then plaintiff has joined in the same count a cause of action arising out of contract with two ’ causes of action arising out of tort for common law negligence. The common law distinctions between actions ex contractu, and ex delicto are in substance retained by our code. Sumner v. Rogers, 90 Mo. 329'. The rule in this State is that such actions cannot be blended in the same count. Kendrick v. Railroad, 81 Mo. 521; Harris v., Railroad, 51 Mo. App. 128; Linnville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 351; Ederlin v. Judge, 36 Mo. 483; Southworth Co. v. Lamb, 82 Mo. 242. (2) The court below erred in refusing the several demurrers offered by defendant to plaintiff’s evidence. One of two things is clearly shown by the entire evidence offered by and on behalf of the plaintiff: 1, that the plaintiff did not see or hear the ear until he was right up to it, or, 2, if the evidence of Henry Kreger is true, he saw it when the horse was 12 feet from the track, and either attempted to cross ahead of the car or was going at such a rapid rate that he could not stop his horse within the 12 feet of space. It is idle for the plaintiff to say that he looked and listened and neither saw nor heard the car. Eveiy other person who testified saw the car from sixty to eight hundred feet. The' leaves of the tree could not have shut off his view, or the sound of the car. If they did, plaintiff was well acquainted with the sit-nation, and should have approached the track with much more caution than the record shows he used. His evidence shows a want of frankness about looking and listening. What he said in that respect did not raise any question of fact to be submitted to a jury. “It will be disregarded as testimony by the court.” Hook v. Railroad, 162 Mo. 581; Kelsey v. Railroad, 129 Mo. 362; Hayden v. Railroad, 124 Mo. •573; Payne v. Railroad, 136 Mo. 575; Baker v. Railroad, 122 Mo. 589; Gurley v. Railroad, 104 Mo. 233; Hickman v. Railroad, 47 Mo. App. 73. Plaintiff was guilty of such negligence as to disentitle him to recover. The least care for his own safety would have averted the injury. Moore v. Railroad, 176 Mo. 528; Zumault v. Railroads, 175 Mo. 288; Holwerson v. Railroad, 157 Mo. 216; Watson v. Railroad, 133 Mo. 250; Boyd v. Railroad, 105 Mo. 371; Sinclair v. Railroad, 133 Mo. 241; Huggert v. Railroad, 134 Mo. 673; Yogg v. Railroad, 138 Mo. 172; Culbertson v. Railroad, 140 Mo. 35. (3) The court erred in admitting evidence as to the loss of the money and jewelry. There is no evidence whatever to show any causal connection between the loss of the money or jewelry and the collision. It is much more probable that if plaintiff had the money and .jewelry with him, they were taken from him by some one after the collision, than that they were separated from his person by reason of the collision. When the verdict must rest upon an inference, the one drawn by the jury must be “the only one which can fairly and reasonably be drawn from the facts.” Nellis on St. Rys., p. 303; Laidlow v. Sage, 158 N. Y. 73; Epperson v. Postal Tel. Co., 155 Mo. 382; Smart v. Kansas City, 91. Mo. App. 586; Breen v. Cooperage Co., 50 Mo. App. 202; Fuch v. St. Louis, 133 Mo. 197; Smith v. Bank, 99 Mass. 605. (4) The first and second instructions given plaintiff each contain the vice of allowing a recovery by plaintiff if tbe facts therein predicated ‘ ‘ directly contributed to cause said collision, ’ ’ etc. Contributed to what? We can understand how two acts of the defendant might nNconjunction cause an injury, and that it would be proper to instruct that if each of said acts contributed to causing the injury, plaintiff would be entitled to recover. But the contributing cause set out in these two instructions nowhere confines their operation to the other causes alleged in the pleading. Such an instruction leaves the jury at liberty to consider any other contributing cause, whether alleged or not.

      Amos B. Taylor and Barclay & Faimtleroy for respondent.
    (1) The court did not err in submitting the case to the jury, and in refusing defendant’s demurrer to the evidence. Prom all the circumstances, it is evident that it was a question of fact for the jury whether or not plaintiff was exercising ordinary care in such circumstances. Bakery Co. v. Railroad, 104 S. W. 1137; Goff v. Railroad, 199 Mo. 694; Dahlstrom v. Railroad, 108 Mo. 525; Donohue v. Railroad, 91 Mo. 357; Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306; Schaub v. Railroad, 87 S. W. (112 Mo. App. 5291); Waechter v. Railroad, 88.S. W. 147. There is a marked difference between the duty of one crossing tracks to “look and listen,” where a street railway (having only a license to use the street concurrently with the public) is involved, and the like duty “to look and listen” when one is about to cross the tracks of a steam railway line. The true rule is that reasonable care must be used and that is the best and only definition of plaintiff’s duty, although, in the case at bar, the court required of plaintiff that he look and listen. Shea v. Railroad, 50 Minn. 395 (52 N. W. 902); Lyman v. Railroad, .114 Mass. 83; Traction Co. v. Scott, 58 N. J. L. 682; Wise v. Railroad, 95 S. W. 898; Cytron.v. Railroad, 104 S. W. 1091; Schafstette v. Railroad, 175 Mo. 142; Latson v. Railroad, 192 Mo. 457. When a car is running on the streets of a city in the night-time, the duty to operate carefully is imperative, and especially where (as in the case at bar) a party on the street, in a strong light, as was plaintiff, cannot well see the approach of a car, coming from the darkness. Weller v. Railroad, 164 Mo. 188; Carey v. Railroad, 101 S. W. 1123; Story v. Railroad, 108 Mo. App. 424; Goff v. Railroad, 199 Mo. 694; Burén v. Railroad, 104 Mo. App. 224. (2) The rulings as to loss of the currency and ruby (on plaintiff’s person at the time) were correct. Defendant’s contention that no finding was required in the court’s instructions that those losses were directly or proximately caused by the collision, is an-, swered by its own instruction which expressly demands such a finding as essential to a verdict for plaintiff. If the said acts of negligence directly caused such losses, plaintiff was entitled to recover for them. On that question all the instructions, considered together ■(as they should be) demand that the jury find the loss of the money and of the ruby (set in the shirt stud of plaintiff) were direct results of the collision. (3) The fact that the negligent acts described “directly contributed” to the collision and injury (as called for by the first and second of plaintiff’s instructions) was the identical form of language adopted by defendant (in its fifth instruction) in 'submitting the question whether “some act of negligence” of plaintiff “directly contributed to cause his injuries.” (a) These instructions were correct, for those whose negligent acts contribute directly to an injury are liable for the consequences. Brash v. St. Louis, 161 Mo. 437; New-comb v. Railroad, 169 Mo. 409; Harrison v. Light Co., 195 Mo. 623. (b) But even if the instructions for plaintiff were open to question on the account aforesaid, the example set hy defendant, adopting, in the 5th instruction, the same mode of instruction and the same language in substance (“directly contributed”) would dull the vitality of any assignment of error on that basis, for parties cannot successfully complain on appeal of theories which they approved at the trial and had the lower court adopt. Seckinger v. Mfg. Co., 129 Mo. 590 ,- Sprague v. Sea, 152 Mo. 338; Christian v. Ins. Co., 143 Mo. 460.
   WOODSON, J.

This is a suit, which was instituted by the plaintiff against the defendant in the circuit court of the city of St. Louis, to recover the sum of $30,000 damages for personal injuries and loss of property, caused by a collision between him and one of defendant’s street cars, in the city of St. Louis.

The petition upon which the case was tried, omitting formal parts, is as follows:

“The plaintiff by leave of court amends his petition and states that the defendant is and at the times herein stated, was a corporation by virtue of the law of Missouri, and used and operated the railway and car herein mentioned for the purpose of transporting persons for hire from one point to another in the city of St. Louis. That at said times ’McNair avenue and Victor street at the places herein mentioned were open public streets within the city of St. Louis.
“That on the 21st day of August, 1900, the plaintiff was riding his horse southward on McNair avenue and Victor street in the city of St. Louis, when defendant’s servants in charge of its east-bound car on Victor street carelessly and negligently and without any warning by bell or otherwise of the approach of said car to said crossing, and whilst running said car at a negligent and excessive rate of speed, and without using ordinary care to look out for persons and animals upon said crossing, and to control said car and moderate and stop said ear, caused and suffered said car to run against and upon plaintiff’s horse, knocking him down and dragging said plaintiff and horse a great distance, and causing the plaintiff great and permanent injuries upon his head, "body, shoulders and arms, and greatly lacerating plaintiff’s face and the process of the skull, and causing a great and permanent injury to the plaintiff’s nervous system and scarifying his head and face for life. And also breaking the cap of knee of plaintiff’s horse so as to destroy the value of said horse, and causing plaintiff to lose four hundred and thirty dollars in currency and also one ruby, of the value of fifty-five dollars, and to damage the setting to the extent of thirty-five dollars, and injure his clothing.
“And for another and further assignment of negligence, the plaintiff avers that at the time of his said injuries and loss there was in force within the city of St. Louis an ordinance of said city by which it was provided that conductors and motormen of street cars should keep a vigilant watch for persons ■ either upon the track or moving towards it, and upon the first appearance of danger to such person the car should be stopped within the shortest time and space possible, and the plaintiff avers that at the time of said collision defendant’s motorman and conductor in charge of said car failed to keep such vigilant watch and failed to stop said car within the shortest time and space possible upon the first appearance of danger to plaintiff and his horse; which violation of said ordinance directly contributed to cause the plaintiff’s injuries and damages.
“And for another assignment of negligence the plaintiff avers that at the time of said collision there was in force within the city of St. Louis an ordinance thereof by which it was provided that street cars should not be run at said place, or in the city.' of St. Louis, at a greater speed than eight miles per hour. Yet the plaintiff avers that at the time of said collision said car was being run at a speed greatly in excess of eight miles per hour, to-wit, about twenty-five miles per hour, which violation of said ordinance directly contributed to cause said collision and plaintiff’s injury and damage.
“That by the injury to his horse the plaintiff was damaged in the sum of two hundred and twenty-five dollars. That he lost $430 in cash from his pocket. That he lost one ruby of the value of $55, and his clothing to the value of $32.50 were injured and destroyed.
“That by said injuries to his person the plaintiff has suffered and will suffer great pain of body and mind, has been permanently disabled from labor and from his avocation as a merchant and sales stable, and he has lost and will lose the earnings of his labor and his said business. He has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, and is maimed for life, to his total damage in the sum of thirty thousand dollars, for which sum he prays judgment.”

' The defendant filed, the following answer (caption and signatures omitted):

“Comes now the defendant in the above-styled cause, and, answering the plaintiff’s petition herein, denies each and every allegation thereof. Wherefore, having fully answered, defendant prays to be discharged with its costs.
“For another and further defense to said petition defendant avers that if the plaintiff was injured, as charged in said petition, it was by reason of the carelessness and negligence of the plaintiff directly contributing thereto.
“Wherefore, having fully answered, defendant prays to be discharged with its costs.”

The reply was a general denial.

The cause was tried September 6th and 7th, 1901, and resulted in a verdict and judgment for the plaintiff against the defendant for the sum of seven thousand dollars. Motions for a new trial and in arrest of judgment were overruled and exceptions saved, and an appeal was duly taken to this court.

At the close of plaintiff’s evidence and again at the conclusion of all the evidence in the case defendant offered an instruction in the nature of a demurrer to the evidence, each of which was by the court overruled, and defendant duly excepted.

The plaintiff’s evidence tended to prove that plaintiff’s injuries were caused by a collision with one of defendant’s electric cars at the junction of McNair and Victor streets, in the city of St. Louis; that an east-bound car on Victor street was passing the intersecting street, McNair, about 8 o’clock p. m., without any signal being given, and was running at the rate of twenty to thirty miles an hour. Plaintiff was riding horseback, southward, on his way home, along McNair street, which crossed that on which defendant’s ear line ran. Near the center of the junction of those streets hung an electric arc light with a hood overhead, casting a strong light in a limited circle below its position. Outside of that circle was a large area of dense shadow. The approaching car had a low headlight on the body of the car, and approached plaintiff on a rising grade.

On the northwest corner of McNair and Victor streets stood a two-story grocery store, on a building line, the usual distance back from the curb. Near the curb at the corner there, were two tall trees with dense foliage, and the lowest branches of which were seven or eight feet above the ground. At ten feet distance north of the track, the side from- which the plaintiff was coming, one could only see down Victor street about fifty or sixty feet. Both of said streets were improved and were thirty-five feet in width, from curb to curb.

As plaintiff approached Victor street his horse was moving in a slow lope until about fifteen feet of the north crossing of Victor street, when he slowed up to a rate not much faster than a walk. He looked west, from which direction the cars ran, as there is but a single track on Victor street, and as the car crosses thereon it moves eastward. He saw nothing nor heard any bell or other signal, and proceeded to cross the track. The night was very dark, and, in the circling light of the electric arc lamp overhead, he was first apprised of the approaching car by his horse suddenly swerving away to the east, and was struck by the rapidly approaching car which emerged from the darkness beyond the range of the arc lamp, which illuminated only the intersection of the two streets. That the brilliant glare of that light limited by the shadow cast by the hood so dazzled him that his vision was obscured and made it difficult to see things beyond its rays of light.

Plaintiff’s evidence also tended to show that he was quite severely injured, and that his horse was rendered valueless by reason of the injuries received by it. The evidence also tended to show that in consequence of the collision he lost the sum of $450 in money, and a ruby worth the sum of $55, and some other minor losses.

Defendant introduced evidence which tended to show that the plaintiff was guilty of contributory negligence, which will be noticed more particularly later on.

"Whereupon the plaintiff prayed the court to instruct the jury as follows:

1. “If the jury find from the evidence in this case that on the 21st day of August, 1900, the defendant was operating the railway and car mentioned in the evidenee for the purpose of transporting persons- for hire from one point to another in the city of St. Louis as a street railway company; and if the jury further find from the evidence that at said time McNair avenue and Victor street, at the places mentioned in the evidence, were open public streets within the city of St. Louis;- and if the jury further find from the evidence in this case that on said day the plaintiff was riding his horse-south on McNair avenue, in the city of St. Louis, at its intersection with Victor street, and that whilst riding at said place defendant’s east-bound car, on Victor street, collided with plaintiff’s horse, knocking him down and causing said horse and plaintiff to be rolled and crushed by said car and greatly injured upon his person, and said horse to be injured, and plaintiff to sustain a loss of money and of a ruby, and damage to his clothing; and if the jury find from the evidence in this case that the defendant’s servants in charge of said ear did not exercise ordinary care in running said car at and before said collision, and did not use-such care to run said car at a moderate rate of speed, and to give warning of the approach of said car to said crossing; and if the jury find from the evidence that such neglect of defendant’s servants to use ordinary care in running said car upon said crossing directly contributed to cause said collision and- injury to plaintiff’s person, and loss and injury to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car, before and whilst going’ upon said crossing, and such care to avoid such collision and injuries, then the plaintiff is entitled to recover. ’ ’

2. “If the jury find from the evidence in this case that on the 21st day of August, 1900, the defendant was operating the railway and car mentioned in the evidence for the purpose of transporting persons for hire from one point to another in the city of St. Louis as a street railway company; and if they further find from the evidence that on said day McNair avenue and Victor street, at the places mentioned in the evidence, were open and public streets within the city of St. Louis; and if the jury find from the evidence that on the evening of said day the plaintiff was riding his horse south on McNair avenue at the crossing with Victor street in the city of St. Louis, and that whilst he was on said crossing defendant’s motorman and conductor in charge of the east-bound car ran said car upon said crossing and caused said car to collide with plaintiff’s horse and plaintiff, and drag and injure the plaintiff and his horse, and cause the plaintiff to lose_ his money and property, and his clothes to be injured; and if the jury further find from the evidence that at the time that said car ran upon said crossing and collided with plaintiff and his horse defendant’s motorman and conductor in charge of said car were causing said car to be run at a speed in excess of fifteen miles per hour, as provided by the ordinances of the city of St. Louis, read in evidence; and if the jury further find from the evidence that such excessive speed of said car above that provided by the ordinances of the city of St. Louis directly contributed to cause said collision and plaintiff’s injuries and loss and damage to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car upon said track, and to avoid injury to himself and property whilst going to and upon defendant’s track, then the plaintiff is entitled to recover.”

3. “The court instructs the jury that under the ordinance of the city of St. Louis, read in evidence, it was the duty of the defendant’s motorman and conductor in charge of the car mentioned in the evidence as colliding with plaintiff and his horse, to have kept a vigilant watch for persons either npon defendant’s track or moving towards it, and upon the first appearance of danger to such person either upon.the track or moving towards it, to stop said car within the shortest time and space possible, and if the defendant’s motorman and conductor in charge' of the said' car failed to keep such vigilant watch, or failed to stop said car within the shortest time and space possible upon the first appearance of danger to- the plaintiff, then the defendant was guilty of negligence; and if such negligence directly contributed to cause plaintiff’s injury, and if the plaintiff himself exercised ordinary care to look and listen for an approaching car and to avoid, injury therefrom, before and whilst going upon' defendant’s track, and was injured by said car, then plaintiff is entitled to recover.”

4. “If the jury find for the plaintiff and further find from the evidence that plaintiff’s horse was injured by said collision, and that plaintiff lost currency from his pocket by said collision, and that plaintiff lost a jewel ruby by that collision, and that plaintiff’s clothes were injured in said collision, they should assess in their verdict such damages not exceeding two hundred and twenty-five dollars, as they may believe from the evidence the plaintiff sustained by said injury to his horse, and also such damages not exceeding fifty-five dollars as the jury may believe the plaintiff sustained by the loss of his ruby, if the jury believe from the evidence he did lose his ruby; and also damages not exceeding four hundred and thirty dollars for the loss of currency from his pocket, if the jury believe from the evidence that the plaintiff did-lose currency from his pocket, by reason of said injury; and also damages not exceeding thirty-two dollars and fifty cents for injury to his clothing, if the jury find from the evidence that the plaintiff did sustain injury to his clothing; and, also, if the jury find from the evidence that the plaintiff sustained injuries to his person by-reason of said collision they should assess his damages at such sum as the jury may believe from the evidence will be a fair compensation to the plaintiff: 1st, for-any pain of body or mind which the jury may believe he has suffered or will hereafter suffer directly caused by said injuries; 2d, for any loss of earnings of his labor which the jury may believe from the evidence the plaintiff has sustained by reason of his injuries and directly caused thereby; 3rd, for any expenses necessarily incurred for medicines, surgical attention or-nursing, which plaintiff has sustáined by reason of said injuries and directly caused thereby, if the jury find from the evidence that the plaintiff did incur such expenses by reason of said injuries, the verdict not to exceed the sum sued for. ’ ’

"Which instructions and each of them the court gave, to which action of the court in giving each and every of the instructions aforesaid, the defendant at the time duly excepted and saved its exception.

Thereupon the defendant prayed the court to instruct the jury as follows:

“1. Under the pleadings and the evidence in this-case the plaintiff is not entitled to recover, and your-verdict must be for the defendant.
“2. The court instructs the jury that plaintiff is-not entitled to recover upon the ground that defendant’s agents in charge of its car failed- to keep a vigilant watch or failed to stop its car within the shortest time and space possible.
“3. The court instructs the jury that plaintiff is not entitled to recover upon the ground that defendant’s agents in charge of its car failed to sound the gong or to warn the plaintiff of the car’s approach.
“4. If the jury find from the evidence that plaintiff rode his horse along McNair avenue and approaching the car track in Victor street at such a high and ■excessive rate of speed as to prevent plaintiff from stopping or checking his horse in time to avert collision with defendant’s car, and that such conduct on his part caused or contributed to cause the collision and plaintiff’s injuries, then plaintiff is not entitled to-recover, and your verdict must be for the defendant.
“5. It is charged in the defendant’s answer that the plaintiff himself was guilty of carelessness and negligence which directly contributed to cause his injuries. With' respect to this averment you are instructed that notwithstanding defendant may have been guilty of negligence in this case, yet, if you find that the plaintiff was himself guilty of some act of negligence which directly contributed to cause "his injuries and losses, then plaintiff is not entitled to recover. If, therefore, ypu find that the plaintiff caused the horse he was riding to attempt to pass in front of defendant ’s car when said car was so short a distance away as to prevent defendant’s motorman in charge thereof, in the exercise of ordinary care with the means and appliances at hand, from stopping said car in time to avert collision, then the plaintiff has been guilty of ■contributory negligence and is not entitled to recover, even though you should find the defendant to have been negligent with respect to the rate of speed and the failure to give warning.”

Which instructions the court refused to give, to 'which refusal of the court to give said instructions and each of them, the defendant at the time duly excepted.

The court gave to the jury at the request of the -defendant the following instructions:

“6. The court instructs the jury that the plaintiff cannot recover for any loss sustained by the Atheline Tea Company on account of the injuries received by plaintiff.
“7. With respect to the allegation that defendant’s agents were operating its car at a negligent rate of speed, you are instructed that the defendant, under the ordinance, read in evidence, had the right to operate its cars at the place of collision at a rate of speed not to exceed fifteen miles an hour, and that it was- not negligence for it to operate its ears within that limit, unless under the circumstances you find a person of ordinary care and prudence would not have done so. Therefore, before the plaintiff can recover upon the ground of excessive speed, you must find either that defendant’s car was running at a rate of speed exceeding the ordinance limit, or at such a rate of speed under the circumstances as an ordinarily careful and prudent person would not have run said car, and not then, unless you find that said rate of speed was the direct, proximate and efficient cause of the collision and plaintiff’s injuries and losses.
££8. With respect to the allegation that those in charge of the car failed to stop the car within the shortest time and space possible upon the first appearance of danger to the plaintiff, you are instructed that this principle of law does not apply unless the plaintiff was in a position of peril a sufficient length of time to have enabled those in charge of the car, by the exercise of ordinary care and by the use of such instrumentalities at hand as would occur to an ordinarily prudent person under circumstances of that kind to employ to enable him to stop the car and avert the collision. In other words, until the plaintiff was upon the track or in actual danger of collision with the car, those in charge of the car were not obliged to bring it to a stop.
££9. The court instructs the jury that it was the duty of plaintiff before riding his horse across defendant’s track to look and listen for approaching cars, and if they believe from the evidence that plaintiff rode his horse over defendant’s track without looking or listening for the cars, and that if plaintiff had looked or listened for the car he could have seen or heard it approaching in time to have avoided injury therefrom, in the exercise of ordinary care on his part, then plaintiff cannot recover in this action.
“10. The plaintiff sues in this case to recover damages on account of injuries and losses alleged to have been sustained in a collision with defendant’s car. The acts of negligence charged against the defendant are as follows: 1st, that defendant operated its car at an unlawful rate of speed, to-wit, twenty-five miles an hour; 2nd,.that defendant’s agents in charge of its car failed to keep a vigilant watch for vehicles and persons on foot; 3rd, that said defendant’s agents failed to stop said car in the shortest time and space possible; and 4th, that defendant’s agents in charge of its car failed to sound the gong or to warn plaintiff of the approach of said car. "With respect to the foregoing allegations of negligence, you are instructed that the burden is upon the plaintiff of establishing to your satisfaction by the preponderance or greater weight of the evidence that some one or more of such acts of negligence charged was committed by the defendant, and. that such one or more of said acts of negligence, so established, were the direct, proximate and efficient cause of the collision and plaintiff’s injuries and losses, and unless he has done so, he is not entitled to recover, and your verdict must be for the defendant.
“11. The court instructs the jury that even though they believe from the evidence that defendant was guilty of negligence in failing to ring its gong and in running its cars at an excessive rate of speed, yet, if they also find that plaintiff rode his horse across defendant’s track without listening or looking for an approaching ear, or approached defendant’s track at an excessive rate of speed or so fast as to be unable to stop his horse in time to avoid the accident after it became possible in the exercise of ordinary care for him to see or hear, then plaintiff cannot recover and their verdict must be for the defendant.
“12. With respect to the allegation that defendant’s agents failed to warn the plaintiff of the approach of its cars you are instructed that such warning is not required under all circumstances. If the bell of the car was sounded, the plaintiff is not entitled to recover upon that ground; but even if it was not sounded, this did not exonerate the plaintiff from looking and listening for the approach of the car, if by looking and listening he could have seen or heard it, and if he could by looking or listening have seen or heard the ears approaching in time to have avoided ■collision with it, in the exercise of ordinary care upon his part, he is not entitled to recover upon the ground ■of a failure to give warning.”

Thereupon the court amended defendant’s refused instructions numbered four and five, and gave the same, as amended, of its own motion.

“4. If the jury find from the evidence that the plaintiff rode his horse along McNair avenue, and approaching the car track in Victor, at such a high and ■excessive rate of speed as to prevent plaintiff from stopping or checking his horse in time to avert collision with defendant’s car and that this was negligence on part of plaintiff and that such conduct on his part caused or contributed to cause the collision and plaintiff’s injuries, then plaintiff is not entitled to recover, and your verdict must be for the defendant.
“5. It is charged in the defendant’s answer that the plaintiff himself was guilty of carelessness and negligence which directly contributed to cause his injuries. With respect to this averment, you are instructed that, notwithstanding the defendant may have been guilty of negligence in this case, yet if you find that the plaintiff was himself guilty of some act of uegligence which directly contributed to cause his injuries and losses, then plaintiff is not entitled to recover. If, therefore, you find that the plaintiff negligently caused the horse he was riding to attempt to pass in front of defendant’s car when said car was so short a distance away as to prevent defendant’s motorman in charge thereof, in the exercise of ordinary care, with the means and appliances at hand, from stopping said car in time to avert collision, then the plaintiff has been guilty of contributory negligence, and is not entitled to recover, even though you should find the defendant to have been negligent with respect to the rate of speed and the failure to give warning.”

To which action of the court in amending said instructions, and each of them, and giving same as amended, defendant at the time duly excepted, and saved its exception.

I. The first assignment of'error made by appellant was to the action of the court in refusing to compel the plaintiff to elect as to which of the two causes of action stated in the petition he would go to trial upon.

The contention of the appellant is that there are two causes of action stated in the one count of the petition, namely; one arising ex delicto and the other ex contractu; the former being based upon the allegation of common law negligence, and the latter for the violation of the ordinance pleaded, which it is claimed could create a civil liability only by virtue of a contract of acceptance on the part of the defendant, the violation of which would be a breach of- contract and not the commission of a tort.

Conceding for the sake of argument that appellant’s major premise is correct, without deciding it, yet, under the well-settled rules of practice in this State, the right to require respondent to elect was waived by not standing upon the motion to elect. The action of appellant in answering over and going to trial upon the merits of the case amounted to an abandonment of the motion to elect, and it cannot be again successfully raised in this court. [White v. Railroad, 202 Mo. 539.].

II. It is next insisted by appellant that the court erred in not sustaining its demurrer to the evidence.

The real ground of this contention is that respondent’s own evidence showed that when he was within ten or twelve feet of the car track, and that by looking he could have seen the approaching car which struck him sixty or seventy feet away, and in ample time to have averted the injury had he so looked, and having failed to do so he was guilty of such contributory negligence as should prevent a recovery in this case. If that was all the evidence in the case bearing upon that point, then there would be much force in appellant’s contention; but that is not all the evidence upon that point, as disclosed by the record. His evidence also tended to show that there were two tall trees with long branches and heavy foliage standing near the curb line which somewhat obstructed his view in the direction in which the car was approaching; that an arc lamp was suspended above the crossing where the accident occurred with a hood on it which kept its brilliancy within a limited circle, yet the rays of light therefrom extended as far as the intersection of the two streets; that a man being inside of that area of light, illuminating the four comers of the streets and all the space between them, would be conspicuous for a long distance to the motorman of a car approaching from the darkness, while the vision of plaintiff inside the blaze of light would be dazzled in such a way as to make it difficult, if not impossible, for him to see beyond the limits of the light in which he stood.

Under those conditions the respondent testified that he looked for approaching cars, but saw none until the one which struck him was right on him, so close that he had no time or opportunity to get out of its way, which was approaching at a speed of from twenty-five to thirty miles an hour, and without any signal being given of its approach.

Under that state of the evidence we are of the opinion that a case was. made for the jury to pass upon, and that the court should not declare as a matter of law that respondent was guilty of such contributory negligence as would prevent a recovery. [Hauck-Hoerr Bakery Co. v. Railroad, 127 Mo. App. 190.]

III. It is next insisted that the court erred in admitting evidence as to the loss of the money and jewelry sued for.

'While the evidence introduced tending to prove the causal connection between the loss of the money and jewelry and the collision was not very strong, yet we are clearly of the opinion that if the collision was the real cause of the loss, and that plaintiff was in no manner responsible for the collision, then the defendant is liable to him for the loss. This is so elementary that a citation of authorities in support thereof would-be useless. The fact that the evidence introduced upon that subject was unsatisfactory goes to the weight of the evidence and not to its admissibility. And we might add, in this connection, that the objectionable features pointed out by appellant in the instructions given upon this same subject can be obviated upon the next trial by making then more specific in requiring the jury to find that the loss ot the money and jewel was the direct result of the collision.

IV. Defendant complains of the first and second instructions given by the court on behalf of the plaintiff. It is claimed that they are erroneous for the reason that each of them authorizes the jury to find for the plaintiff if they believed from the evidence that the facts predicated therein “directly contributed to cause said collision,” etc. I will consider only the first instruction for the reason that what is said as to the first will apply equally well as to the second.

The words quoted from the instruction do not tell the jury that if they found the facts stated* therein caused the collision and the consequent injury then they would find for the plaintiff, but told the jury that if they found from the evidence “that such negligence of defendant’s servants to use ordinary care in running said car upon said crossing directly contributed to cause said collision and injury to> plaintiff’s person and loss and injury to his property; and if the jury further find from the evidence that the plaintiff exercised ordinary care to look and listen for an approaching car before' and whilst, going upon said crossing, and such care to avoid such collision and injuries, then the plaintiff is entitled to recover.”

Under either of those instructions the jury might well have found, and doubtless did find, that plaintiff was not guilty of contributory negligence, but that he was injured by the concurring negligence of the servants in charge of the car, and some unknown cause not stated in the petition or shown by the evidence. Clearly that was error. The instruction should have been so drawn as to have told the jury that before they could find for plaintiff they must find that the negligence of the defendant caused and not merely contributed to the injury. Many things might be suggested which contributed to the injury, not stated in the petition or mentioned in the evidence; and there is nothing in the instruction which would prevent the jury from considering such outside things.'

In other words, there is nothing in the instruction which told the jury that before they could find for plaintiff they must first find that its negligence caused the injury; nor does the instruction limit the jury to a consideration of the acts of negligence stated in the petition hut leaves them to wander into the unknown field of speculation to find out, if possible, what fact it was that must have existed that contributed to defendant’s negligence which caused the injury. And there is nothing in the instruction which tells the jury what the fact was that existed which contributed to defendant’s negligence in causing the injury nor when or how it contributed therewith. I am unable to conceive of an instruction which is more indefinite in its meaning, or more calculated to mislead the jury, than the one under consideration.

Learned counsel for respondent practically concedes the error above mentioned but attempts to evade the effect thereof by saying that the language complained of in his instructions is found in appellant’s refused instruction No. 5; and having thereby invited the court to commit the error pointed out, it will not now be heard to complain of that error.

Where the court has adopted a theory of a case which is erroneous at the instance or request of one or both of the parties to a suit, then the party or parties inviting the error will not be permitted to urge that error for a reversal of-the judgment in this court. He or they will not be permitted “to blow hot and cold” in that matter in the trial of law suits. They must stand or fall in this court upon the theory assumed by them in the court below. While the above rule of practice is academic, yet we are unable to see its application in this case, for the reason that defendant’s instruction No. 5 was a correct declaration of the law of contributory negligence. It told the jury that if they believed from the evidence “that the plaintiff was himself guilty of some act of negligence which directly contributed to cause his injuries and losses,” then he was not entitled to recover. There is no error in this instruction, nor is there anything therein which invited or suggested to the court or counsel for respondent to commit the error pointed out in said first and second instructions.

Y. The action of. the court in admitting in evidence over the objection of appellant the ordinances mentioned in the petition, known as the “speed and watch ordinances” is also assigned as error.

The reason for this assignment, as stated, is that the city of St. Louis has no power to create by ordinance a civil liability of citizens inter sese in the ab-sense of a contract accepting the ordinance.

It is sufficient answer to that contention .to say that the appellant is in no position to raise that question in this case, for the reason that it tried its case upon the theory that the city possessed that power, and introduced in evidence an ordinance of the city authorizing the company to run its cars at a rate of speed at the point of the injury not to exceed fifteen miles an hour. And by asking instruction No. 7 recognized the authority to pass the watch ordinance. Appellant having tried its case upon that theory it will not now be permitted to shift positions and try its case upon a different theory from that upon which it was tried below.

There are certain other assignments of error presented but they are of such minor importance that they do not merit special mention.

For the error mentioned in paragraph four of this opinion, the judgment is reversed and the cause remanded for a new trial.

All concur except Valliant, P. J., absent; Lamm, J., in result.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    MANCIL G. COOK v. LAURA A. NEWBY, JOHN H. NEWBY and HARRIETT COOK, Appellants.
    Division One,
    July 3, 1908.
    1. STIPULATION FOR.JUDGMENT: Incomplete. Where the pleadings admit and the proofs show that the stipulation for judgment did not contain all the compromise agreement, the chancellor does not err in refusing to specifically enforce the terms of the stipulation.
    2. -: -: Warranty Deed: Provision for Occupancy. Where plaintiff charges that the warranty deed of himself and wife to their daughter and her husband was fraudulently obtained and fraudulently recorded, and sues to have it set aside, and defendants plead a written agreement for judgment, which does not contain, as their answer admits and avers, a stipulation that plaintiff and his wife were to have a joint occupancy and use with defendants of the premises for life, and that they were to be paid $100 annually for certain stock, and the proof shows that those things were a part of the agreement to compromise the suit, though not incorporated therein, and the written agreement provides for an unconditional decree vesting the fee simple title in defendants and divesting plaintiff and his wife of all interest and right in said land, the cause being in equity and the stipulation executory, the chancellor did not err in refusing to enter judgment in accordance with the terms of the written stipulation for judgment.
    3. -: -: Consultation of Attorneys: Old and Illiterate Party. Where the scheme for compromising the litigation pointed to a consultation of attorneys and the agreement was drawn by defendants’ attorneys and forwarded to them, in the expectation that it would be submitted to plaintiff’s attorney, and that was not done, and plaintiff was old and somewhat illiterate, and did not understand the force and drastic effect of the stipulation, and needed counsel, and defendants unduly hurried its execution, and plaintiff executed it under incidents of surprise, accident and mistake as a settlement of a family imbroglio, there is a case that appeals strongly to' the conscience of the chancellor when he is asked to specifically enforce the stipulation, although the testimony does not warrant a finding that defendants perpetrated a fraud upon- plaintiff or misled him as to the legal effect of the paper.
    4. SETTING ASIDE DEED: Land Bought With Wife’s Money: Inconsistent Theories. When asked by the grantor of land to return, his title, the grantees may not claim to take under the deed and at the same time mend their hold on the land by denying the grantor’s original title. The grantees may not claim to take under his deed, in which his wife released her inchoate dower, and when he sues to have the deed set aside as fraudulent, and she is joined as a defendant, hark back to the origin of the grantor’s estate in the land and add to their holding by showing that, prior to the married women’s enabling acts, the land was purchased with his wife’s money and the title taken in his name. The two theories are inconsistent. The grantees must stand or fall upon the theory upon which they dealt with the grantor, namely, that the land belonged to him and was conveyed to them upon a valid delivered deed.
    5. HURRIED TRIAL: Impatient Chancellor. The appellate court is not concerned with questions relating to the chancellor’s patience or impatience at the trial. The vital question on appeal is whether or not, in the light of the facts, the decree does equity. Besides, the exclusion of extraneous issues, even in an equity case, does not indicate impatience.
    6. EVIDENCE: Letter: Written by Agent. He who does a thing by another does it himself. A letter written by plaintiff’s wife at his request and with his knowledge, to defendants, asking them to come home and offering to give them the home place if they would do so, is competent evidence, and is admissible for what it is worth.
    7. CONVEYANCE: Delivery: Intention. What constitutes delivery of a deed is a question of intent, a mixed question of law and fact; and that intention may be got at by what was done before and at the time, and may be what happens afterwards is of value.
    8. -: -: To Third Party. When a deed, signed and acknowledged,, is placed in the hands of “a third person, to be held for the benefit of the grantee, with intent to part with dominion over it, and to be recorded at the grantor’s death, that constitutes a good delivery in the eyes of the law, if the grantee accepts it.
    9. -: -: -: Cancellation: Premature Record. After verbal promises were made and broken by plaintiff for the return to the home place of plaintiff’s daughter and her husband, to take care of him and his wife, and after they had later returned under plaintiff’s agreement to convey the farm to them and his failure to keep that agreement and their removal again, plaintiff and his wife as a condition precedent to the return of the daughter and her husband, to take charge of the farm and live with them, executed a warranty deed in ordinary form, reciting a consideration of one hundred dollars and love and affection, and conveying the property to the daughter and her husband, and delivered it to a third party, and by written memorandum authorized him to hold the deed during their lifetime and at their death to cause the same to be recorded and then to deliver it to the grantees, and further in said memorandum relinquished “all right and title to said farm excepting possession and use during our lifetime.” Thereafter the grantees moved to the farm, lived with plaintiff and his wife, and took charge of the farm, and the cause was not tried on the theory that the grantees had not complied with their agreement. A year later the deed was brought home by plaintiff’s wife and remained for some time in the house, and was then recorded, and there is testimony that it was recorded with plaintiff’s knowledge and consent, but also evidence to the contrary. Meld, that plaintiff parted with dominion over the deed when he signed and acknowledged and delivered it to the depositary, and when the grantees accepted it by the performance of the conditions which induced its execution; and it cannot be set aside on the theory that it was prematurely put of record. A present interest had passed on the complete delivery of the deed to the third party for the daughter and her husband.
    10. -: -: -: Recall. A deed placed by the grantor in the hands of a third party with unconditional instructions to deliver it to the grantee upon the death of the grantor and without any reservation in the grantor of the right to revoke or recall it during his lifetme, operates to vest the grantee with a present interest in the land, which the grantor cannot thereafter revoke or recall or destroy by the simple expedient of retaking possession of the deed.
    11. -: -: -: Life Estate: Contemporaneous Memorandum. But the placing of the deed in the hands of a third party with unconditional instructions, evidenced by contemporaneously signed memorandum, to record it on the grantor’s death and then deliver it to the grantee, especially where possession and use during the grantor’s life are not relinquished by the memorandum, creates a life estate in the grantor. In such case the memorandum is a part and parcel of the transaction, and' should be read into the deed.
    12. -: -: -: -: Joint Use and Occupancy. But where the arrangement entered into shows that the deed was made in the expectation and intention that the grantees would have a joint use and occupancy of the premises with the grantors, the life estate which the law creates in the grantor, predicated of the contemporaneous memorandum, is qualified by adding thereto the right of joint occupancy on the part of the grantees.

      .Appeal from Gentry Circuit Court. — Now. W. C. Ellison, Judge.
    Reversed and remanded (with directions).

      Platt Hubbell and George Hubbell for appellants.
    (1) The execution of the deed and its delivery to Axtell was in law a delivery to Laura A. Newby and ■John H. Newby, and conveyed the title to them in praesenti. 13 Cyc. 568, 570; White v. Pollock, 117 Mo. 467; Williams v. Latham, 113 Mo. 165; Standiford v. Standiford, 97 Mo. 231; Foreman v. Archer, 130 Iowa. 49 ; Freeman v. Trummer, 91 Pac. 1075; Tiedeman on Real Property, p. 650, sec. 815; Crowder v. Searcy, 103 Mo. 97; Martindale on Convey., secs. 211, 221, 225. (2) Since the terms on which Axtell held the deed were reduced to writing, parol testimony is not admissible to contradict or vary those terms. Hilgar v. Miller, 72 Pac. 319; 9 Eneyc. of Ev., p. 437; Ashley v. Bird, 1 Mo. 442; Lance v. Price, 5 Mo. 101; Jones v. Jeffries, 17 Mo. 577; Boggs v. Laundry Co., 171 Mo. 282; Bunce v. Beck, 43 Mo. 266; McMahon v. Turney, 45 Mo. App. 103; Neville v. Hughes, 104 Mo. App. 455; Deuser v. Hamilton, 52 Mo. App. 394; White v. Watts, 118 Iowa -549. (3) Even if parol testimony were admissible to contradict or vary this written memorandum, plaintiff has failed to establish his allegation that the grantors reserved the right- to recall this deed. White v. Watts, 118 Iowa 549; Construction Co. v. Tie Co., 185 Mo. 25; Cook v. Foley, 152 Fed. 41. (4) The delivery to Simms only substituted Simms as the depositary in the place of Axtell. The rights of the parties became fixed by their delivery of the deed to Axtell. (5) Plaintiff has failed to establish his allegation that he did not consent to this deed being removed from the ■custody of Simms and recorded. Foreman v. Archor, 430 Iowa 49; Hoffmire v. Martin, 45 Pac. 754, 29 Ore. 240. (6) Plaintiff is bound by the stipulation of settlement. Powell v. Adams, 98 Mo. 598; Robinson v. Bobb, 139 Mo. 346; Crim v. Crim, 162 Mo. 544; McKissock v. Groom, 148 Mo. 459'; Studybaker v. Cofield, 159 Mo. 596 ; 20 Eneyc. of P. & P. 629, 632, 662. There was a valid consideration for the deed and for the stipulation. Taylor v. Crockett, 123 Mo. 300'; Edwards v. Latimer, 183 Mo. 610; 6 Am. and Eng. Ency. Law (2 Ed.), 694, 712; 14 lb. 1034, 1035. (7) A court of equity will not make a bargain or a contract for the parties, but will enforce the bargain and contract that the parties have made. McElroy v. Masterson, 156 Fed. 42.

      E. G. Lockwood, W. F. Dalbey and C. H. S. Goodman for respondent.
    (1) The deed was never delivered as a deed. Delivery is the transferring of a deed from the grantor to the grantee in such manner as to .deprive him of the right to recall it. 1 Bouvier’s Law Diet. (11 Ed.), p. 396; 3 Washburn, Real Property (6 Ed.), sec. 2143. (2) Without delivery the deed was invalid as a conveyance of title. 3 Washburn, Real Property (6 Ed.), sec. 2144. (3) In order to constitute a delivery within the meaning of the law the deed must have altogether passed from the dominion and control of plaintiff. 3 Washburn, Real Property (6 Ed.), sec. 2148. (4) It is immaterial for the purposes of this case what was the nature of the title conveyed by the instrument deposited with the Bank of MeFall, the issues being the delivery of the deed and its being placed of record without authority of plaintiff. (5) Oral testimony of the circumstances attending the execution of the deed and its deposit with the Bank of MeFall was admissible. 1. A parol contemporaneous agreement independent of and not inconsistent with the one reduced to writing is admissible in evidence. Greening v. Steele, 122 Mo. 287. 2. "Where a part only of a contract is put in writing the omitted part may be established by parol. Greening v. Steele, 122 Mo. 287; Brown v. Brown, 90 Mo. 190; Black River Lumber Co. v. Warner, 93 Mo. 374; Edwards v. Smith, 63 Mo. 119'; Bunce v. Beck, 43 Mo. 266; Moss v. Green, 41 Mo. 390; Rollins v. "Clay-brook, 22 Mo. 405; O’Neil v. Crain, 67 Mo. 250; Ellis v, Bray, 79 Mo. 227; Life Assn. v. Cravens, 60 Mo. 388 ; Roe v. Bank, 167 Mo. 406; 2 Burr Jones, Ev., sec. 445, p. 980; 1 Greenleaf, Ev. (12 Ed.), secs. 304-305r. (6) The deed in question was always subject to the grant- or’s control, and in such case there is no delivery. Prutsman v. Baker, 30 Wis. 644; Huey v. Huey, 65 Mo. 689; 2 Greenleaf, Ev. (8 Ed.), sec. 297; Jackson v. Phipps, 12 Johns. 421; Standiford v. Standiford, 97 Mo. 231; Tyler v. Hall, 106 Mo. 313; Scott v. Scott, 95 Mo. 300’; Rogers v. Carey, 47 Mo. 232; Mudd v. Dillon, 166 Mo. 110; Bunn v. Stewart, 183 Mo. 375; Stokes v. Anderson, 4 L. R. A. 313. (7) The stipulation pleaded by the defense as a bar to the further prosecution of this suit is executory, without consideration, and unconscionable, and as such is incapable of being enforced in a court of equity. He who comes into a court of equity must come with clean hands. 1 Pomeroy’s Eq. Jur., secs. 397, 400, 404; Miller v. Kilsay, 114 Mo. App. 598 ; Coleman v. Dannenberg Co., 103 Ga. 784; Gottfried v. Bray, 106 S. W. 639.
   LAMM, J.

By his bill in equity, and a count at law in ejectment, plaintiff sued the Newbys to set aside an unconditional warranty deed to 120 acres of land in Gentry county, Missouri, and the record of it, and to recover possession of the land. Such steps were taken that Harriett, wife of plaintiff, became a party defendant. A decree on the equity side going in favor of plaintiff and a judgment of ouster with one cent damages going on the connt in ejectment, all the defendants appeal.

The equity count in substance sets forth that plaintiff is the owner of the land; that on July 20,1903, he and his wife Harriett signed and acknowledged a warranty deed conveying the land to the Newbys, as husband and wife; that the deed was not delivered but was left with a depositary to be held until demanded by plaintiff; that without plaintiff’s consent or knowledge the Newbys fraudulently obtained possession of it and caused it to be recorded for the purpose of defrauding plaintiff out of the land; that the deed purports to be for a consideration of the. love grantors bore the grantees, and $100, but that said $100 and no other consideration was paid plaintiff for the land; that the deed and the record thereof are void and constitute a cloud upon plaintiff’s title; wherefore, a decree is prayed adjudging plaintiff the legal and equitable owner of the real estate, that the deed and its record be cancelled, and for all proper relief.

The count in ejectment is conventional.

The Newbys filed an amended answer subdivided into counts, viz.:

The first count was a general denial of each and every allegation, saving those expressly admitted.

The second count states the deed was executed by plaintiff and his wife in the form of a general warranty and conveyed to the Newbys the real estate described ; that it was for a good and valuable consideration acknowledged by grantors, and was duly put of-record; that by virtue of it grantees are the owners of the land in fee simple absolute; that the plaintiff claims some title or right in and to said real estate, wherefore affirmative relief is asked [under section 650, R. S. 1899], to-wit, that the court ascertain and determine the title and right of the parties respectively and adjudge and decree title and for any other proper relief.

By the third count the Newbys say the deed was in the nature of a family settlement, giving to Laura A. Newby the portion she was to receive in the estate of plaintiff and his wife Harriett. That the defendant Laura A. is the child of Mancil G. and Harriett Cook and intermarried with her codefendant, John H.; that theretofore Mancil G. and Harriett had conveyed to their other children certain real estate by way of family settlement. By way of matter of inducement leading up to the conveyance, it is next alleged that Mancil G. and Harriett after the marriage of Laura A. contracted with her and her husband that the Cooks and Newbys were to live on the home farm and divide the profits in consideration of the Newbys assisting in maintaining a home for Mancil G. and Harriett. That they entered into the performance of said agreement and the Newbys made valuable improvements on the farm, but the plaintiff, Mancil G., violated the contract and rented the farm to others and the Newbys then moved to a farm near Cameron, Missouri. That after-wards, Mancil G. and Harriett induced them to return under an agreement to convey the farm to them, but, on their compliance, negelected to make the deed pursuant to the agreement. That thereupon in March, 1903, the Newbys moved from the farm and rented another adjacent; that in July, 1903, the Cooks made a proposition that if the Newbys would return to the home farm it should be deeded to them. That having in mind the failure to perform the former agreements, they declined the offer unless the conveyance was made as a condition precedent to their return; that thereupon Mancil G. and Harriett promised and agreed to make such conveyance as such condition precedent, and in pursuance thereof all the parties met on July 20, 1903, and the deed was made; that when made it was delivered and placed in the possession of one Axtell to be held by him (under an agreement of the grantors and grantees) until the death of Maneil Gr. and Harriett when it was to be delivered by him to the Newbys ' and recorded; that Maneil Gr. and Harriett then and, there relinquished all claim or right to said deed or the land, except the right of joint possession of said land with the Newbys; that the consideration of said deed was that the Newbys should keep certain live stock for Maneil Gr. (describing it) and that the Newbys should remain on the farm and assist Maneil Gr. and Harriett in maintaining it as a home and that a further consideration was the settlement on Laura A. of her share in the estate of Maneil and Harriett; that thereafter, in consideration of the delivery of said deed, the Newbys returned to the farm and performed valuable services and made valuable improvements; that, thereafter said Axtell contemplated removing to Oklahoma ; that in this emergency it was agreed by the parties in interest that the deed should be taken from Ax-, tell’s possession and placed in the possession temporarily of one Simms, and this was done; that after-wards in July, 1904, by the new agreement of all of the parties in interest the deed was taken out of the-hands of Simms, delivered to the Newbys and recorded; that the execution of the deed and its record were the result of mature deliberation on the part of all the parties interested; that the Newbys performed all their obligations under the contract and conveyance. Wherefore, they renewed their prayer to have the court determine the title and rights of the parties and establish title by its decree, etc.

In the fourth count of their answer the third count is referred to and adopted. It next alleges that in August, 1904, plaintiff instituted a suit of like character to the present one, which he dismissed in September of that year voluntarily; that in October of that year he instituted the present suit; that in November following he came to defendants and wanted the suit settled and stopped so it could never be started again, and offered to sign a contract to that effect if the Newbys would agree to pay him $100 per year in lieu of feeding and caring for certain live stock as contemplated in the first agreement; that said proposition was accepted and a compromise evidenced by a written agreement in the form of a stipulation for a decree in this suit, was signed and executed and filed in court, whereby in addition to the considerations set forth in the stipulation the Newbys agreed to pay plaintiff $100 per year in cash in lieu of feeding and caring for said live stock. The stipulation is set forth in the answer, and defendants tender full compliance with its terms and pray the court to enter a judgment and decree in conformity therewith.

By the fifth count in the answer, the Newbys refer to and adopt the averments of the third and fourth counts and further allege that the land was bought by the separate money and means of Harriett Cook; that she is a necessary party to a determination of the cause, and they ask that an order be made requiring her to be made a party defendant.

Having been made a party, Harriett Cook adopted the answer of her codefendants and prayed the court to ascertain and determine the title of all parties and to establish the same.

The reply was a general denial. It next alleges that plaintiff is very illiterate; that at the time of the stipulation pleaded in the answer, he was in trouble and distress over the litigation and the bad feeling-in his family; that these conditions so affected him that he was not able to comprehend the nature of the stipulation, nor its effect, and that he was fraudulently induced by defendants to believe and did believe that it in nowise affected his rights to the real estate; that under this belief he signed the same without any consideration passing; wherefore, he prayed that it be held for naught, and renewed his prayer for the relief prayed in his petition.

Pacts pertaining to any material questions determined will appear in the body of the opinion.

I. Defendants complain that a stipulation for judgment was not specially enforced, nisi, by a decree. But the complaint is not sound. One trouble with the stipulation is the answer admits and the proofs show that it did not contain all the compromise agreement.. It left out the important feature that the Newbys were to pay $100 per year to plaintiff in lieu of a certain stock arrangement in the original agreement. Another trouble is that although defendants admit plaintiff was entitled to a joint occupation and use. of the land during his life, yet the stipulation is without safeguard in that regard. To the contrary, it provides for an out- and-out decree “vesting the fee simple title and all right, title and interest in and to said land into the defendants Laura A. Newby and John H. Newby;” and,-further, that the court shall “enter its judgment and decree that neither Mancil G-. Cook or Harriett Cook have any right, title and interest in and to said land. ’ ’ Another trouble is that the compromise scheme clearly pointed to a consultation of attorneys on both sides and the drafting of such stipulation as would meet the approval of counsel and effect a just and final settlement of a family imbroglio. There is testimony upon which the court could well find that the stipulation was drawn by defendants’ counsel and forwarded by mail to the Newbys; that the plaintiff was illiterate and needed the advice of his counsel; that he did not understand its force and drastic effect and that defendants (because of some prior action taken in the absence of their counsel) unduly hurried its execution in the absence of plaintiff’s counsel, though requested to await a day or so for its examination and approval by them.

The canse was in equity — the stipulation was ex-ecutory in its nature, and, on the record here, we cannot say the chancellor ruled inequitably in refusing to enter a decree in strict accordance with it. The testimony does not warrant a finding that defendants perpetrated a fraud on plaintiff, or misled him as to the legal effect of the paper, as alleged in the'reply, but the record discloses such incidents of surprise, accident and mistake connected with its execution as' appeal strongly to the conscience of a chancellor in dealing with the property rights of an old man, somewhat illiterate as the plaintiff is shown to be. The decree, when entered, became the chancellor’s decree — not that of the litigants. It is the voice of the" chancellor’s conscience — a conscience that is not plastic mortar to be molded this way and that by the hand of a litigant, however skillful a potter he be. If- on the whole case defendants were entitled to relief, that is one thing. But that this stipulation should coerce a decree whether or no, is a different matter. "We find no fault with the refusal to specifically perform the stipulation, as such.

The point is ruled against defendants.

II. Defendants’ learned counsel somewhat rely for reversal on the fact that the land in question was purchased by the separate means of Harriett Cook. They tendered evidence tending to show that fact. It was excluded, but the offer is here for our consideration. In a nutshell, the argument runs somewhat in this wise, viz.: The “moral and meritorious” consideration for the family settlement and conveyance flowed from Harriett and not from Mancil. Now, Harriett has joined hands with defendants in upholding the deed and the record of it, therefore, her wishes should be subserved.

But this view is more sentimental than controlling. Because: The land was bought prior to the enactment of the married women’s enabling acts. Conceding it was bought with money coming to the wife by inheritance, yet on this record such money was reduced to the possession of the husband with the approval and acquiescence of the wife. The title was .taken in the husband with her knowledge and remained there with her consent. Moreover, the Newbys were willing enough to take his title through a deed conveying it and conveying merely an inchoate dower interest by Harriett. There is no fact in the case tending to show that such deed was made because Harriett was the beneficial owner of the land. To the contrary, it was negotiated for and made on the theory that the land belonged to Mancil. In this condition of things, to hark back to the origin of the estate and discuss the elements entering into that, tends only to confuse the real issues. When asked by plaintiff to return his title, the Newbys may not claim to take under the deed and at the same time mend their hold on the land by denying plaintiff’s original titlé. The two theories are inconsistent. We conclude that the injected theory has no office beyond that of coloring matter. The Newbys must stand or fall on the theory upon which they dealt with plaintiff, to-wit, the theory that the land belonged to him and was conveyed to them by a delivered deed. If they want to invoke or stand on an equitable title in Harriett, let them first put Mancil in statu, quo ante.

The point is ruled against defendants.

III. Complaint is made that the learned chancellor used language, nisi, indicating inequitable haste in the hearing and disposition of the cause. It is suggested the decree is the product of such haste; but such matter is wholly afield. The chancellor made remarks indicating he wanted the hearing to- move on — that his judicial spirit (“the stomach of his sense”) was a trifle disgruntled over tedious examinations of witnesses, the lug'ging in of extraneous issues; hut it must be remembered there was no jury present to take color from his words; and, after all, his remarks at root were con amo re. And, finally, we are not concerned with questions relating to either his patience or impatience. The vital question here is: Does his decree, in the light of the facts, do equity ? That is the touchstone on appeal.

IV. The main question relates to the delivery of the deed and that question seeks facts.

Mancil and Harriett Cook had six children and a modest estate. Old age coming on, they started three of their sons with advancements in land. Two of their children died in infancy; Laura A. was the only one at home, and to her no advancement had been made. The testimony conclusively shows that when she married Newby her parents desired the young people to remain on the home place and take charge of it and help care for them. It shows conclusively, furthermore, that it was their settled intention that Laura should have the home place as her share when they died. True, it was of greater value than the advancements severally made to the sons, but not so much so as to challenge comment in the light of-the arrangement made. Verbal arrangements somewhat looking to the end in view were made, but not reduced to writing and were broken. Finally the young couple went to themselves a distance away on a dairy farm near Cameron and were brought back by plaintiff and his wife under a promise to convey the land to them. .This promise was made in a letter written by the mother, and offered in evidence but excluded. Defendants put in testimony showing it was written at the request of plaintiff and with his knowledge. He who does a thing by another, does it himself. "We think it should have been admitted as the promise of both parents and as a fact throwing light on the final arrangement. Its terms are before us for what they are worth. That letter, under date of June 26, 1901, runs as follows:

“Dear Children: I will write you again this evening. We are only tolerable well. It is so dry and hot, nobody feels well. It has not rained yet to do any good. I don’t know whether we will raise anything, or not. It is looking doubtful. Laura, Manee and me want you to- come home and we will give you the place. It is more than the boys got, but we expect to live with you. The boys never had any care of us, and we don’t know what trouble we may be. If you will do this, write and let us know as soon as you can. We are anxious to know. By-by for this time.”

Having returned to the farm and performed labor and undertaken betterments in pursuance of that promise, presently plaintiff refused to enter into writings to effectuate the promise and, in consequence, the Newbys again moved away and took another farm. The upshot of it all was that there fell a time when the broken threads of the old negotiations were taken up anew by plaintiff with the purpose of getting the Newbys to return and take charge of the farm, live with him and his wife and maintain the home. An offer was made to make a will leaving the real estate to Laura A. Newby and her bodily heirs. As no- children were born of the marriage, she thought such an arrangement unjust to her husband and declined it. The Newbys let it be known, in effect, that unless arrangements could be put into writing, they would not return but would make their own way in the world. Such being the condition of things, it was finally agreed that a deed be made as a condition precedent to the return of the Newbys. With this end in view, all the parties met by arrangement and an ordinary warranty deed was drawn by one Axtell, and signed and acknowledged by Mancil Gr. and Harriett, conveying the 120 acres of land constituting the home place of the Cooks (and all the land they had) to Laura A. and John H. Newby. It was left with the scrivener, who as a notary took the acknowledgment, with the following memorandum signed by the grantors:

“McF'all, Mo., July 20, 1903.
“We hereby authorize O'. A. Axtell to hold a deed this day made by us of our home farm to Laura A. Newby & her husband during our lifetime and at our death to cause said deed to be recorded and to' then deliver it to them and we relinquish all right and title to said farm excepting possession and use during our lifetime. Mancil Gr. Cook.
Harriett Cook.”

There' was present in Axtell’s office at the time (besides Axtell, the Newbys and Cooks) several witnesses. We need not give the testimony in detail. The clear weight of it is to the effect indicated in the written memorandum, to-wit, that the title passed and that the grantors gave up all right thereafter to recall the deed — that the matter was fixed permanently. Mr. Axtell’s testimony is somewhat to the contrary, but when we consider the very object of making the deed as an inducement for the return of the young people to take charge of the farm, keeping in view prior abortive attempts and broken promises to execute writings, and when we consider the testimony of the grantors and grantees and that of the other witnesses present, and when we give due weight to the signed memorandum, we are forced to the foregoing conclusion.

Subsequently, and before the Newbys moved on the land, Axtell was about to change his domicile to Oklahoma. All parties desired the deed should not be taken away. Accordingly, it was settled by family arrangement that it should be moved to a bank and deposited with a hanker, Mr. Simms.; and in pursuance of that arrangement it was taken from Axtell by John Newby and Harriett Cook with the consent of plaintiff and deposited with Mr. Simms.

The testimony shows that afterwards the Newbys in pursuance of the family settlement moved to the farm and commenced and continued performance of the contract.

The cause was not tried below on the theory the consideration for the deed had failed in that the Newbys had not complied with their agreement, which was, in substance, to return to the farm, take charge of it, make a home for Mancil and Harriett, keep certain stock for Mancil and share and divide the profits of farming operations. To the contrary, the court inquired of plaintiff’s learned counsel as follows: “On what do you found your complaint to have the deed set aside?” To this Mr. Dalbey, of counsel for plaintiff, replied: “Simply that it was obtained without his consent and placed of record — fraudulently obtained.” Again, when a line of inquiry was being pursued relating to the treatment given by the Newbys to the plaintiff an objection was raised that it was not within the issues on the pleadings, and the following occurred: “(By Judge Goodman, counsel for plaintiff): We haven’t made it an issue and we don’t expect to. The issue here is the clandestine getting that deed and putting it on record. ’ ’

At a certain time in the summer of 1904 this deed was brought home by Plarriett Cook and Mrs. Newby, remained in the house for awhile and was then 'put on record. There was testimony upon which the chancellor could find either way on the issue as to whether its removal from the custody of Simms and subsequent record were with the knowledge and consent of plaintiff. Harriett and the Newbys testified it was brought home as the result of an agreement with plaintiff and was recorded at Ms suggestion. They say that plaintiff suggested the deed might as well he recorded as to lie in the possession of Simms — that the place for a deed was on record. Harriett testified that she and her husband saw the deed after it was brought home. Plaintiff does not agree to this. He denies seeing the deed in the house — denies that he consented it should be taken from the custody of Simms or put on record. In corroboration of his theory, it is shown that he went ■to the bank to get the deed himself from Simms sometime later. As tending to impeach the testimony of the Newbys by showing that their motive in getting .the deed was to keep plaintiff from getting it, plaintiff put upon the stand two witnesses named Mason, husband and wife. Mr. Mason was on the stand and for two pages of printed questions and answers he showed such lack of memory and information that the court, at the end of it, directed plaintiff’s counsel to “call another witness.” Thereupon, under such spur and as a last attempt to get an atom of testimony, counsel plumply asked: “Q. We have another question I would like to ask. To refresh your memory, did' they (the Newbys) not tell you that they went to the McFall bank to get that deed to keep the plaintiff, Mr. Cook, from getting it?” This question was objected to as leading and suggestive and because the witness had already testified he didn’t know. The court allowed the question, and his answer was this: “Well, sir, I have a recollection of them telling me those words —something to that effect — something near like that. . . . Yes, sir, but ivhat it was, why, I don’t remember.”

Mrs. Mason testified that in harvest time, 1904, the Newbys showed her the deed. She couldn’t say what they said; she didn’t know how the subject came up; witness said in substance that she would like to see if the deed was like their deeds; she looked it over with the remark that it was like theirs and gave it back to Mrs. Newby. Then the following occurred: “Did they state where they got that deed? A. No, sir, I don’t know that they did. Q. Did they make any statement of how or why they came in possession of it? A. They were afraid Mr. Cook would go and get it.. Q. Where did they get it from did they say? A. Out of the bank.” On cross-examination, she said she could not remember all the conversation; that some of it might have slipped her mind; that she didn’t pay any particular attention to what was said.

There was evidence that the Newbys were paying the taxes on the land. It was assessed to plaintiff in the year 1908. Plaintiff’s assessment list for 1904 showed that he made an affidavit to the effect that he was not the owner of any real estate.

On this record, can the decree cancelling the deed stand?

We think not. The broad justice of the case on the facts present leads to that conclusion. The making of the deed was not of sudden whim or a passing emotion of parental love. The deed was not laid away, as on a shelf, as a mere scroll to take time to consider. It was a business arrangement understanding^ entered into as the result of business negotiation and supported by a consideration. [Kalsa v. Halsa, 8 Mo. 303.] The avowed object of it was to put the matter beyond the caprice of plaintiff — a caprice which grantees had theretofore suffered from. While Mancil could read and write poorly, yet there is m proof here he was non sui juris. There is no allegation in the bill that this deed was void because of imposition on a grantor of weak mind.

, A deed speaks only by delivery, and what constitutes delivery is frequently a close question. It is a question of intent — a mixed question of law and fact. The intent of the parties may be got at by what happened before and at the time and, it has been said, it may be. that what happens afterwards is of value. When a deed, signed and acknowledged, is placed in the custody of a third person to hold for the benefit of the grantee, as here, with the intent of parting with dominion over it, that makes a good delivery in the eye of the law if the grantee accepts the deed. The facts of this ease irresistibly tend to the conclusion that what Mancil Gr. and Harriett Cook did was done to create the reliance on the part .of the grantees that the conveyance was irrevocable, and, in this case, that' reliance was created and acted on.

In commenting on a case (Williams v. Latham, 113 Mo. l. c. 174), Brace, J., said: “But, conceding that it was the intention of Mrs. Smith that the deeds were not to be delivered by Mrs. Thompson or recorded until after her death, and that Mrs. Thompson was cognizant of that intention, yet the delivery was good. It was absolute; the contingency upon which the second delivery was to take place was certain to happen, all the power and dominion of the grantor over the instrument was relinquished without reservation to Mrs. Thompson. The intention to pass title as a present transfer is evident upon the face of the whole transaction and placed beyond doubt by the grantor’s reservation of the possession and rents for her life, put in the deeds after they were drawn, on her own suggestion. Such being the case, from the moment the deed was delivered to Mrs. Thompson she became a trustee, holding the instrument for the benefit of the grantee, and, when she discharged the trust, by afterwards delivering the deed to the defendant (although after the death of Mrs. Smith), yet such second delivery hath relation to the time of the first, and is good delivery in the lifetime of Mrs. Smith. The ruling of the circuit court so holding is sustained by the rulings of this court in the following cases and authorities cited: Rothenbarger v. Rothenbarger, 111 Mo. 1; Allen v. DeGroodt, 105 Mo. 442; Sneathen v. Sneathen, 104 Mo. 201; Crowder v. Searcy, 103 Mo. 97; Standiford v. Standiford, 97 Mo. 231; Burke v. Adams, 80 Mo. 504; Huey v. Huey, 65 Mo. 689.” .

In Foreman v. Archer, 130 Ia. l. c. 55, Weaver, J., speaking to the point, said: “A deed placed by the grantor in the hands of a third person with unconditional instructions to deliver to the grantee upon the death of the grantor, and without any reservation in the grantor of the right to revoke or recall the instrument during his lifetime,' operates to vest the grantee with a present interest in the land, which the grantor cannot thereafter recall or destroy by the simple expedient of retaking possession of the deed.” The learned judge cites a line of Iowa cases to sustain the proposition advanced, as well as cases from other jurisdictions, viz.: Foster v. Mansfield, 3 Metc. 412; Bury v. Young, 98 Cal. 446; Prutsman v. Baker, 30 Wis. 644; Hathaway v. Payne, 34 N. Y. 106; Concord Bank v. Bellis, 10 Cush. 278; Wheelwright v. Wheelwright, 2 Mass. 454; Thatcher v. St. Andrew’s Church, 37 Mich. 264; Wall v. Wall, 30 Miss. 91. Continuing, he says: “Such a deed, delivered to a third person to be turned over to the grantee after the grantor’s death, is usually held to operate as an ordinary conveyance of the fee, subject to a life estate reserved in the grantor,” citing White v. Watts, 118 Ia. 549; Prutsman v. Baker, supra; Bury v. Young, supra— which cases sustain the proposition.

In Prutsman v. Baker, supra, Dixon, C. J., said of a like hypothesis: “As to the grantor, the delivery is absolute and final, and so is his conveyance of the land, the title to which passes at once to the grantee, qualified only by the right of the grantor to nse and occupy or take and receive the rents and profits during Ms life, or until the event shall have happened upon which second delivery is to he made. The grantor in such case converts his estate into a life tenancy, and makes himself the tenant of the grantee. These conclusions result unavoidably from the certainty of the event upon which the second delivery is made to depend, and from the impossibility, under the circumstances, that the grantor will ever be able to recall or repossess Mmself of the deed. He delivers the writing, therefore, as his deed, always SO' to remain and never to return to him, and it becomes presently operative and the title vests Immediately in the grantee.”

Y. Assuming, then, -for the purposes of the case, as held in the last paragraph, that the deed was not in escrow, but was (without power of recall) placed with. Axtell for the benefit of the grantees to be recorded on the death of the grantors, the contemporaneously signed memorandum but makes clear that a life tenancy was created in the grantors, which the law itself would predicate of that condition of things. TMs memorandum was part and parcél of the transaction. It should, therefore, be read into the deed. The arrangement entered into, shown by the record, upon which the parties put their own construction at the time, qualifies the life possession of grantors by add-' ing thereto the right of joint occupancy on the part of grantees.

We do not consider the record of the deed, whether made with plaintiff’s consent or not, a material element in the equities of the case. If the title passed from, plaintiff (as we have held) he would suffer no injury from a mere record which may have been a breach' of trust but in nowise affected the title. [Wallace v. Harris, 32 Mich. 380.] That fraud to be actionable must result in injury is axiomatic.

VI. We now come to a phase of the case, eyed at first a little askance, and then critically. Whatever value it has is in showing how one taper lights another in briefs, as in the world at large. It shows, too, how difficult in a close matter it is to determine the proximate cause of things — or the probable result of a given cause. Possibly, its force is somewhat spent in dis-. closing what hidden pitfalls lurk in the primrose paths diverging from the beaten way in brief-making for appellate courts. As wayfarers in the main-traveled highway of the law, we shall set it down to point its own moral, thus:

Appellants’ scholarly counsel close a good brief in chief with a short and modest flight of fancy — a borrowed apostrophe to Justice — by poetical license, dressed in singular phrase, viz.:

“For Justice
All place a temple, and all season summer.”

Now, prima facie, is this aught but an innocent and mild invocation to serenity of judicial temper? Is it more than a wholesome effort to key up the mind of the court to a notch of high thinking? Inquiring students in the law recall the unexpected and anxious result produced by throwing the squib in the celebrated Squib Case. But mark the novel result here. The very innoeency of the apostrophe’s face was taken as a mask hiding evil contrivances. So it was that the very blandness of the countenance of Mr. Harte’s “Heathen Chinee” [in the case of William Nye] hid like evil. Apparently nettled by its use, learned counsel for respondent condemn appellants’ brief by and large. Bethinking themselves of the time when lago tripped good Michael Cassio into mischief by a night’s revel, they designate the brief in Cassio’s description of the events of that woeful night, as, viz.:

“A mass of things . . . but nothing wherefore. ’ ’

Not only so, but counsel fall upon the (to us) unknown author of the apostrophe with heated epithet. They belabor him roundly, though dead. They say he was the “great agnostic and prince of plagiarists.” They say the first part of the apostrophe was “cribbed from a heathen poet” without giving due credit. They say its concluding phrase is of such “occult meaning that no one so far as our knowledge extends has had the hardihood to asseverate that it is within his ken.” They conclude a trenchant and sprightly printed argument with a beautiful poetical apostrophe to the Bible, most becoming and tenderly reverential, and then (by way of sharp contrast) darkly hint that appellants’ apostrophe comes from a sinister source, to-wit, Paine, Volney or Voltaire — winding up by laying- down certain sacred ethical precepts, which, they insist, announce the right doctrine to apply to the facts of the record.

Thus sorely pricked, appellants’ counsel .(drawing from the well of the drama) retort in their reply brief in the words of Bassanio’s comment on the caskets (made to himself, see, Merchant of Venice, Act III., sc. 2), viz.:

“In law, what plea so tainted and corrupt, But, being seasoned.with a gracious voice, Obscures the show of evil! In religion, What damned error but some sober brow Will bless it, and approve it with a text, Hiding the grossness with fair ornament.”

So much, for the matter. We take leave of it with this observation: Whatever the issue raised, it is not one of fact or law. We refuse to meddle with it on this appeal and, hence, leave it to a forum, if any, having jurisdiction to try it out.

VII. Defendants by their answer having asked the court to ascertain and determine the title of the respective parties, and sufficient facts for the determiuation of such titles being in the record, the canse is reversed and remanded with directions to the chancellor, nisi, to enter a decree determining the title of Mancil Gr. and Harriett Cook to be a life tenancy with the right to joint possession of the land with Laura A. and John H. Newby, and that the fee (subject to the life estate) is in the said John H. and Laura A. Newby as husband and wife. The chancellor must further decree that nothing in his decree shall prejudice any right of Mancil Gr. or Harriett Cook or either of them to sue to set aside or modify the conveyance on equitable terms if hereafter the consideration for the deed should fail through subsequent wrongful or negligent acts of the Newbys in complying with their contract. We do not hold such right can exist — that question is not here. We say the right must be preserved if it does spring into existence.

All concur except Valliant, P. J., absent.