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    THE STATE ex rel. MOUNT MORA CEMETERY ASSOCIATION, Appellant, v. CASEY.
    Division Two,
    March 17, 1908.
    1. TAXATION: Certiorari. A writ of certiorari will lie against the city assessor to determine the validity of an assessment made by him. In fixing the value of the property assessed he acts quasi-judicially, as he does also in attempting to assess at all property claimed to be exempt from taxation.
    2. -: -: Matters Considered. The writ of certiorari brings up for review only the record of "the assessor who made the assessment, and all verbal testimony as to serving the notice and blank assessment list upon the property-owner cannot be considered.
    3. -: Exempt Property: Cemeteries. The real estate of a cemetery company used for a burying ground is exempt from taxation. But the- personal property of such company, such as the money derived from the sale of lots and horses and hearses, is not exempt, either of itself, or as an incident of the property positively declared to be exempt.
    4. -: -: Laws Rigidly Construed. Laws exempting property from taxation are to be strictly construed, and the right of exemption must be established beyond a reasonable doubt. An exemption exists only where it is expressed in explicit terms.
    5. -: -: Cemeteries: Constitution. Section 6 of article 10 of the Constitution, ordaining that ‘the property, real and personal, of the State, county and other municipalities, and cemeteries shall be exempt from taxation” does not exempt the personal property of cemetery companies from taxation. The words “property, real and personal,” in that section, are separated from, and have no connection with, the word “cemeteries.” The exemption extends only to cemeteries as such.
    6. -: -: -: Charter: Money Used for improvements. A clause in the special charter of the cemetery company providing that “after the payment of the present liabilities of said association and the reimbursement of the stockholders of the amounts of money they have advanced or may advance to purchase and improve said cemetery grounds now owned by said association, the residue of the income of said association, either from sale of lots or from any other source, • shall be forever held, kept and used by said board of trustees and their successors for the sole and only purpose of improving, embellishing and preserving said cemetery grounds now owned and controlled by said association,” cannot be construed as exempting the personal property of the association from taxation. It makes no reference to the subject of taxation, and that subject cannot be said to have- been in the minds of the Legisla- . ture when the special charter was granted.
    7. -: Assessment: Public Notice. The statute which requires the city assessor to give public notice, in a newspaper and by handbills, to all property-owners, requiring them to deliver to him lists of their property,- was enacted for the convenience of the assessor, to enable him to make his assessments with more expedition and accuracy, and his failure to comply with it does not invalidate the assessment.'
    8. -: Lists to Taxpayer: Refusal. Where the assessor calls upon the secretary and president of the corporation and asks them to make out a list of its personal property and they decline to do so, he has complied with the law, and is authorized to make out the list upon the best information he can obtain, without stating the kind of personal property assessed.
    Appeal from Buchanan Circuit Court. — Hon. Henry M. Barney, Judge.
    Affirmed.

      H. K. White and V. Pike for appellant.
    (1) Appellant is not "subject to taxation. Constitution, article 10, section 6; Original charter, sec. 6; Amendment, sec. 2;- Cooley on Taxation (3 Ed,U^63Íiir6linton v. Henry Co., 115 Mo. 557: St eni iqtaex9 ton S90n ^ 7 7 Louis v. Brown, 155 Mo. 545; Colson v. Cemetery Go., 15 S. W. 245; Oakland v. St. Paul, 36 Minn. 529; Stockton ex rel. v. Mayor, 9 Atl. 203. (2) The particular assessment complained of by relator in these proceedings is void for want of compliance with’ the law regulating the assessment of personal property in cities of the second class, (a) The notices required by section 5575, Eevised Statutes 1899; were not shown to have been given by the assessor. Cooley on Taxation (3 Ed.), pp. 484, 631-632; McTwig-. gin v. Hunter, 18 E. I. 776. (b) The whole evidence shows that the requirements of section 5579 were not complied with. Cape Girardeau v. Buehrman, 148 Mo. 204; State ex rel. v. Cummings, 151 Mo. 57; State ex rel. v. Hoyt, 123 Mo. 348; Whitely v. Platte County, 73 Mo. 30; Railroad v. Young, 96 Mo. 41. (c) The assessor had no right to place a retiim of service on the assessment list after his assessment book passed out of his hands. State ex rel. v. Phillips, 102 Mo. 668; Johnson v. Mallory, 74 Cal. 430. (d) The assessment list was void on its face for two reasons : First. It was unsigned by the assessor as required by the city ordinances. Second. It failed to show an assessment upon information, but showed an attempted assessment by estimation. E. S. 1890, sec. 5579; McCormick v. Nebraska, 61 N. W. 99.

      W. B. Norris and O. E. Shultz for respondent.
    (1) By the special charter granted to the appellant, neither its real nor personal property was exempt from taxation, except its land, not exceeding-fifty acres, so long as it was used for the purposes of a cemetery. Appellant cannot claim exemption from taxes levied upon its money and effects. Sec. 9 of appellant’s charter; State v. Nelson, 52 Md. 638; People ex rel. v. Cemetery Co., 86 111. 336. (2) Under the Constitution only cemeteries are exempt from taxation, and not corporations that may own cemeteries. The words of the Constitution are “the property, real and personal, of the State, counties and other municipal corporations, and cemeteries shall he exempt from taxation.” This clause must he strictly construed and those claiming exemptions under it must establish their right beyond a reasonable doubt. Fitterer v. Crawford, 157 Mo. 51;Bosendale Cemetery Assn. v. Linden Township, 63 Atl. 904. (3) The Constitution did not create any exemptions from taxation other than those already granted by special charters. It was not the purpose of the convention of 1875 to extend exemptions, but rather to curtail them. State ex rel v. Missouri Free School, 162 Mo. 332. (4) Appellant must by its evidence specifically bring itself within any exemption from taxation claimed by it. When the property may or may not be exempt, the evidence must clearly show its right to exemption. Adelphia Lodge v. Crawford, 157 Mo. 356. (5) The law presumes that the assessor performed his duty and properly assessed the property in question.' State ex rel. v. Fullerton, 143 Mo. 682; State ex rel. v. Board of Education, 98 Mo. 362. (6) Where jurisdiction has attached in favor of the assessor, and this jurisdiction is given him by the charter and not by thei ordinances of the city, all the provisions, both of the statute and the ordinances, are merely directory and not mandatory. The statute demands that all of the assessor’s proceedings shall be liberally construed, including even the giving of the formal notice published in the newspaper. State ex rel. v. Bank, 120 Mo. 173; sec. 5635, B. S. 1899. (7) The notice by publication in a newspaper is not mandatory but directory. Sec. 5577, B. S. 1899. If there he no formal publication and the taxpayer delivers his list to the assessor, or, if after his failure to deliver such list, he is notified personally by the assessor the formal notice performs no function in giving the assessor jurisdiction. (8) The assessor had the right, in assessing the personal property of appellant, to assess it at a lump sum, in the absence of a sworn statement, and, if incorrectly done, it was a mere irregularity. State ex rel. v. Cummings, 151 Mo. 94; sec. 5579, R. S. 1899. (9) Where the assessment roll has passed out of the hands of the assessor, as by delivering it to the common council, and he no longer has control of it, the certiorari is directed to the wrong party. 4 Eney. Pleading and Practice, pp: 142, 176, 177; State v. Howell, 24 N. J. L. 519; Iron Co. v. Town Clerk, 29 Wis. 444; Morris Canal, etc. v. State, 14 N. J. L. 430:

      H. K. White and V. Pike for appellant in reply.
    (1) Respondent was the proper person to whom* the writ should have been directed. R. S. 1899', secs. 5575, 5579, 5581, 5582; Crawford v. Township Board, 22 Mich. 405; Davis v. Town of Harrison, 46 N. J. Law, 86; Milwaukee, etc., Co. v. Town Clerk, 29 Wis. 444. (2) No objection having been made in the court below, this error, if it ever existed, cannot be raised for the first time on appeal. People ex rel. v. McLean, 80 N. Y. 260.
   BURGESS, J. —

The relator applied to the circuit court of Buchanan county for a writ of certiorari to bring before that court the record of an assessment of personal property against the relator, for the year 1904, made by defendant, George E. Casey, assessor of the city of St. Joseph.

In its application relator set forth its incorporation under an act of the Legislature, passed in 1851, and an act amendatory thereof, passed in 1871. It alleged that under the act of incorporation and the Constitution of this State its property was exempt from taxation, that the assessment complained of had been made without, notice to it, and that the assessment was irregular and void.

The writ was awarded, and the defendant filed his return, in which he admitted the corporate capacity of relator, and set forth the clause in its charter by virtue of which relator claimed exemption from taxation. He also averred that he had called at the office of relator, and found J. C. Hedenberg, secretary of the corporation, in charge thereof, to whom he tendered a list to- be filled out and sworn to as the list of personal property owned by relator, as required by sections 5579 and 5580, Revised Statutes 1899, but that said Hedenberg refused to make out a list, and told defendant that J. C. Wyatt was president of the corporation and the proper person to make out said list; -that thereupon he called upon said Wyatt and presented to him said list to be filled out, but that said Wyatt refused to fill- out said list and to return the same.

Attached to the return was a notice and blank assessment list, which notice required the relator to make out and return to defendant, as assessor, a list of its personal property, the name of the defendant being appended to the notice in print. Said blank assessment list sets forth various classes of personal property, and at the head is a blank return, of service by the assessor or his deputy, which was unsigned.

Defendant also attached to his return to said writ a copy of his assessment of, relator’s personal property, the same being set out at the foot of a blank assessment list as follows: “In the absence of sworn statement, the assessor’s estimate $120,000'.”

Subsequently, the defendant filed an amended return, wherein in addition to the averments made in the original return, he. sets forth that oh February 17, 1904, availing himself of the best information he could get, he assessed the relator in the sum of $120,000, and made out a tax list accordingly. To the amended return were also attached a notice and blank assessment list and copy of defendant’s assessment of relator’s property, the same being identical with those attached to the original sGturn. Neither in the original nor the amended return is it shown that the assessor’s name was .signed' to said assessment, the only signature being his printed name appended to the notice accompanying the blank list 'tendered as alleged, to relator. Attached to said assessment list, as set forth in the amended return, is the following:

■ “I hereby certify that I served this list on the 3rd day of February, 1904, by calling at the office of the MountfMora Cemetery Association, 413 Francis Street, St. Joseph, Missouri, and offering a true copy hereof to J. C. Hedenberg as the secretary of said association, .but he refused to receive the same, and referred me to J. C. Wyatt, the president of said association, as the proper person to be served with this list, and I thereupon and upon‘said date called upon J. C. Wyatt, the president of said Mount Mora Cemetery Association, at his office, Fifth and Felix streets, in St. Joseph, Missouri, and served upon him this list by delivering to and leaving with him a true copy thereof.
“(xeo. F. Casey, City Assessor.”

Defendant furthei:, averred that he had placed, his assessment on the assessment book, and affixed, thereto his affidavit as city assessor, and delivered said book to the city council by delivering the same to the city clerk.

Neither the original nor the amended return averred that any general notice had been given in the. newspapers of the assessment.

The relator filed its traverse to the defendant’s return, which denied all the allegations of the return which were not admissions of the allegations contained in the application for the writ of certiorari, except that it admitted that defendant had placed the. assessment on the tax boók and affixed his affidavit as city assessor thereto.

Upon the trial of the case, relator introduced in evidence its charter and the amendments thereto, section nine of said charter being as follows:

“Said cemetery is hereby declared exempt from all taxes and assessments so long as the same shall remain dedicated to the purposes of a cemetery, except such sums as may be imposed by the board of trustees upon each lot sold for the improvement, advancement and uses of said' lots, and to repair the enclosure, gateways, etc., of said cemetery.”

Section 2 of the act amending said charter was as follows:

“That after the payment of the present liabilities of said association, and the reimbursement to the stockholders of the amounts of money they have advanced, or may advance, to purchase and improve said cemetery grounds now owned by said association, the residue of the income of said association, either from sale of lots or from any other source, shall be forever held, kept and used by said board of trustees and their successors, for the sole and only purpose of improving, embellishing and preserving said cemetery ground's now owned and controlled by said association. ’ ’

J. C. Hedenberg testified that he was, and had been for many years, secretary of the cemetery association, that defendant had never served upon him or offered him an assessment list, and that he told defendant when he called on him that J. M. Wilson was treasurer of the association and that Mr. Wyatt was president. On cross-examination, he said that he told defendant that the company was not subject to taxation, but that nothing was said about a list.

J. '0. Wyatt testified that he was president of the-company in 1904; that he never had a word with defendant about taxation of the company and that no demand was made upon him to make out a list in 1904; that the association owned less than fifty acres of land, and that several thousand bodies were interred in this cemetery, interments having been going on for over fifty years. On cross-examination, he testified that no dividends were paid; that the secretary gets a hundred dollars a year, which he believed was the only salary paid; that the assessment for 1903 was abated, but he did not remember why, and that he did not get any notice for taxes for the year 1904.

The relator then introduced in evidence the following sections of the tax ordinances of the city of St. Joseph :

“Section 4. In assessing personal property, the assessor or a deputy shall, as far as possible, visit the residence or place of'business of each person owning personal property, and require such person to list all personal property owned by, or in the possession of, or under the control of such person, separating and placing each kind of property in the space designated on such list, first administering an oath to answer all questions touching the personal property or its value. When the list is complete, he shall require such persons to sign and verify the affidavit thereto.
“Section 6. In all cases the assessor shall sign his full name to each list, the writing and signatures to be written with ink, and the first Christian name of each person written in full; and the assessor shall, in copying the lists into the city tax books, make a full and correct copy thereof; and any assessor who shall fail or neglect to comply with any of the requirements or provisions of this ordinance, or the laws of this State pertaining to or relating to his duties as assessor, shall forfeit to the city the sum of one hundred dollars, to be recovered by suit in the name of the city, in any court- of competent jurisdiction.”

The defendant testified on his own behalf as follows :

“On February 3rd, 1904,.I took a list prepared to be filled for the assessment of personal property, one of the printed lists, to the office of Mr. Hedenberg and offered to give it to him to make a return of the personal property óf the Mount Mora Cemetery Association. I found him in his office, and he came right forward. I told him my business, and that as secretary of the Mount Mora Cemetery Association, I wanted to leave a list with him to make a return of personal property to the city, but he declined to receive it. He in his manner declined. I would not use the word.‘refuse,’ though I suppose it is tantamount to the same thing. He said he would not receive it because it was not assessable. I told him that I supposed that was a matter the attorney would have t'o do with. I told him that I wanted to make this service upon him as secretary, and he said he was not a member of the board and didn’t want the list; that he had nothing to do with that. I spoke to him a little more- about the matter of the assessment, and we spoke of Mr. Wyatt and Mr. Wilson, president and treasurer, and there was something said about their position as officers, and of Mr. White having this matter in charge; and I said I thought it would -be better to serve the list upon Mr. Wyatt because of the confusion of names, this probably getting into the courts, and Mr. J. M. Wilson being treasurer of the board, I had better hand it to Mr. Wyatt to avoid confusion. I took my list and put it back in my pocket — I don’t think it was out of my hand. I don’t remember more than having offered it to him. I started to put it on the table, but he said he was not a member of the board and that it didn’t 'belong to him, and I nut it in my pocket. I took the list to Mr. Wyatt’s store, not to the office. I told him what the list was, that it was for the personal property return of the Mount Mora Cemetery Association; that I didn’t want to annoy him about the matter, but that it was necessary to bring it to him. I remember now telling Mr. Hedenberg that I did not think Mr. White was the proper person as attorney for me to serve it on, bnt that it should be a member of the official board. I said to Mr. Wyatt that I did not expect him to pay any attention to it, and that I supposed he would refer it to Mr. White, but I had to serve it on him. I went out and left the list in his hand. I knew when. I went to Mr. Hedenberg’s office that Mr. Wilson was-, treasurer. I did not go to him, but went to the place-where I supposed-the office was, and Mr. Hedenberg said he was not a member of the board.”

The court- found the issues for the -defendant, refused to quash the assessment, and awarded judgment against the relator for costs, to which action of the court the relator duly excepted.

Relator filed motion for a new trial, which was overruled, whereupon relator appealed.

Before considering any other point raised in this case, a preliminary question must be decided; that is, whether certiorari will lie in this case.

As a rule the writ -only lies against judicial or quasi-judicial bodies, that is, bodies performing judicial functions, but the authorities are not agreed as to what actions are'judicial. As touching the nature and character of an assessor’s duties, whether judicial or ministerial, there have been but few adjudications.; but in New York, Massachusetts and Minnesota it has been held that in fixing the value of the property assessed the assessor acts quasi-judicially, and that for the purpose of reviewing his acts as such assessor certiorari will lie. [Weaver v. Devendorf, 3 Denio 117; Barhyte v. Shepherd, 35 N. Y. 238; Railroad v. Nolan, 48 N. Y. 513; Baker v. Allen, 21 Pick. 382; Stewart v. Case, 53 Minn. 62.]

In the case last cited it is said: “It is unquestionable, and has been from the earliest days of the common law, that a judicial officer cannot be called to account in a civil action for his determinations and acts in his judicial capacity, however erroneous or by Whatever 'motives prompted. This rule and the reason for it are nowhere more clearly and emphatically statéd than by Mr. Justice Cornell in Stewart v. Cooley, 23 Minn. 350. The only question has been as to its application to officers whose duties are largely ministerial only, when they come- to perform duties imposed on them in their nature judicial or quasi-judicial, as is the case with an assessor under the tax laws. "When he comes to determine the value of property he exercises a quasi-judicial function; he must determine it upon his judgment. Judge Cooley, in his work on Taxation, page 786, lays it down that the exemption from private actions extends to assessors. If the rule protects such officers at all, it protects them for the same reason and to the same extent as in the case of judges of courts.”

It would seem from these authorities that the writ lies in this case.

It is well settled in 'this State that the writ brings up for review only the record of the inferior court or tribunal, and not the evidence taken by it, and that such evidence will not be .considered by the court granting the writ, though included in the return. [Railroad v. State Board of Equalization, 64 Mo. 294; State ex rel. v. Walbridge, 62 Mo. App. 162; Moore v. Bailey, 8 Mo. App. 156; State ex rel. v. Walbridge, 69 Mo. App. 657; Rogers v. Clinton County Court, 60 Mo. 101; Ward v. Board of Equalization, 135 Mo. 309.] We must therefore decline to consider the verbal testimony adduced at the trial in this case.

The relator insists that under its charter and the Constitution of this State its property, real and personal, is exempt from taxation. While it admits that ordinarily when property is claimed to be exempt from taxation the law under which the claim is made will not be construecU;o grant the exemption if by a reasonable' and fair construction of the taxing power it can be held otherwise, yet relator claims that a cemetery corporation organized not for profit to any one, but purely for the purpose of owning a place for the burial of the dead and the care of their last resting place, becomes in effect a. public corporation, and its property is not subject to taxation.

In Cooley on Taxation (3 Ed.), vol. 1, p. 263, it is said: “Some things are always presumptively exempted from the operation of general tax laws, because it is reasonable to suppose they were not within the intent of the Legislature in adopting them. Such is the case with property belonging to the State, and its municipalities, and which is held by them for governmental purposes.”

Many authorities are cited by relator, most of which are to the effect that in large cities cemeteries exist as a matter of necessity, and if not placed-under corporate control where money may be invested and donated for the purchase and improvement of grounds to be used for cemeteries, the proper keeping and improvement of such grounds for such purposes would become a public burden, and, being for the public good, cemeteries are exempted from the operation of general tax laws.

By section 6 of article 10 of the State Constitution it is ordained that “the property, real and persona], of the State, counties and other municipal corporations, aftd cemeteries, shall be exempt from taxation. ’ ’

Relator contends that it was intended to incorporate in the fundamental written law a prohibition of taxing property, real and personal, taken from the general mass of individual property, and held for a public purpose without private gain, and that while ordinarily the word cemetery is synonymous with burial grounds, the personalty of this association as aüb incident " to the property positively declared to be exempt, should also be non-liable to taxation in like manner as the personal property of cities and other municipal corporations.

It must be remembered that the assessment of the taxes complained of here is not against the cemetery grounds or improvements, but against the personal property of the association, amounting in value to at least $120,000', as found by the assessor of the city of St. Joseph, which has been invested and used by the association as its capital, and not for cemetery purposes.

It is quite clear that, under section 6 of article 10 of the Constitution, and section 9 of relator’s charter, all of the land held by it- for cemetery purposes is exempt from taxation for general purposes, but does it necessarily follow that its personal property and moneys on hand acquired from the sale of lots are also exempt from taxation? As a rule, all property is subject to taxation, and, therefore, laws exempting property from taxation are to be strictly construed, and the right of exemption established beyond a reasonable doubt. [Fitterer v. Crawford, 157 Mo. 51.] An exemption from taxation exists only where it is expressed in explicit terms, and it cannot be extended beyond the plain meaning of these limits. [State v. Wilson, 52 Md. 638.]

In Rosedale Cemetery Association v. Linden Township, 63 Atl. 904, it is held, under “an act to authorize the incorporation of rural cemetery associations, and regulate cemeteries,” which provides that “the cemetery lands and property of any association formed pursuant to this act or otherwise incorporated, as well as bonds and mortgages given to secure the purchase money of such cemetery lands, shall be exempt from all public taxes,” that the personal property of such, cemetery associations, consisting of horses, hearses, carriages, agricultural implements, "tools, and other articles used exclusively in and about their cemeteries and for burials in their cemeteries, are subject to taxation. The court said: “The prosecutors insist that the word ‘property,’ as used in the .eighth section supra, means personal property. All exemptions from general taxation are to be considered strict-. ly; the resolution, in case of-doubt, being in favor of the rule which subjects all property to a just share of the public burdens. In State v. Krollman, Collector, 38 N. J. Law 574, the exemption from taxation of ‘the endowment or fund of any religious society, college,’ etc;, was held not to include an endowment of a religious society, college, etc., consisting of land. An exemption from taxation of buildings erected and used for religious purposes was held not to exempt a parsonage erected by a religious society on their church lot. [State v. Axtell, 41 N. J. Law 117; Little v. Bowers, 46 N. J. Law 300; State Board of Assessors v. Railroad, 50 N. J. Law 447, 14 Atl. 610; Presbyterian Board v. Fisher, 68 N. J. Law 143, 52 Atl. 228.] Tax exemptions are not favored and must be given the most rigid .admissible construction. [Cooper Hospital v. Camden, 70 N. J. Law 478, 57 Atl. 260.] It is in accordance with the common wish of mankind that the places where the dead are buried should be protected and preserved against the interference of possible sales for unpaid taxes, or under execution for debts, and be kept free from all molestation or desecration. These legislative exemptions of cemetery property are the expression of that wish. But it is not perceived .how that wish is made effectual by exemption from taxation property not used for burial places that has no associations connected with it, and may be disposed of by the association at any time, to any person for any purpose. A reading of this section also discloses that all the provisions, except that relating to taxation, can refer only to real estate. The word ‘property’ as used in association with the words ‘cemetery lands’ would be reasonably and according to well-known rules of construction held to mean like property to cemetery lands, and could well refer to structures, monuments, grave stones and buildings' erected upon the, lands for cemetery purposes. In the general tax act, when personal property is exempted from taxation it is plainly indicated. In the tax act of 1866 as amended in 1894 (Gen. St. 3320, sec. 200, subd. 2) the exemption of colleges, etc., is as to the ‘land’ and the‘furniture’ of .the buildings and ‘the personal property used therein,’ and much the same language appears in the tax act of 1903 (P: L. p. 394). The tax act of 1903'ex-empts cemeteries under the following language : ‘ Graveyards, not exceeding ten acres of ground, cemeteries and buildings for cemetery use erected thereon. ’ The word ‘property,’ as usedoin section 8 of the act authorizing the incorporation of cemeteries, supra, does not include personal property.”

In People ex rel. v. Board of Directors of Chicago Theological Seminary, 51 N. E. 198, it was held that the words “the property of whatever kind or description belonging to and appertaining to said seminary shall he forever free .and exempt from all taxation” did not mean all property belonging to .the corporation, and property owned by it hut not appertaining to the' seminary, though the income therefrom was used for seminary purposes, was not exempt. The court said: “It is manifest that the purpose of the section was to exempt property owned by the corporation, hut it does not follow that the intention was to include in that exemption all property owned by it, used for the purpose of a seminary.”

In City of Kansas v. Kansas City Medical College, 111 Mo. 141, it is held that the exemption from taxation of a lot “with the buildings thereon” when used for schools (Constitution, art. 10, sec. 6; Revised Statutes 1889, sec. 7504), does not include office furniture, nor the furniture of a chemical laboratory not fastened to the building.

It is true that section 2 of relator’s amended charter provides “that after the payment of the present liabilities of said association and the reimbursement to the stockholders of the amounts of money they have advanced or may advance to purchase and improve said cemetery grounds now owned by said association, the residue of the income of said association, either from sale of lots or from any other source, shall be forever held, kept and used by said board of trustees and their successors for the sole and only purpose of improving, embellishing and preserving- said eemetery. grounds now. owned and controlled by said association;” but that section cannot, we think, be construed as exempting the personal property of the corporation from taxation. It makes no reference whatever to the subject of taxation, which subject was evidently not in the minds of the Legislature at the time. Nor do we think that section 6 of article Í0 of the Constitution, supra, can be construed as indicating an intention on the part of the framers of that instrument to exempt from taxation the personal property of cemeteries, whether owned hy-a corporation or otherwise. In that section the words, “the property, real and personal, of the State, counties and other municipal corporations,” are separate from and have no connection with the words “and cemeteries,” which follow. The exemption extends to “cemeteries” as such, but the section makes no reference to any kind of property in that connection, and section, 7 of said article expressly provides that ‘ ‘ all laws exempting property from taxation other than the property above .enumerated shall be void.” •

Section 9119, Revised Statutes 1899, states and embraces the persons, properties and subjects exempt from taxation, and not expressly exempted by the Constitution, and personal property belonging to cemeteries is not included.

For these reasons we must rule this point against the relator.

It is further contended by relator that the particular assessment complained of is void for want of ■compliance with the law regulating assessments of personal property in cities of the second class, in that the notice required by section 5575', Revised Statutes 1899', is not shown to have , been given. That section is as follows:

“The assessor shall, at least ten days before the first day of January in each year, give- public notice, by advertisement in some daily paper published in the city, and also by hand-bills posted and circulated throughout the city, that all persons owning or having in their possession or under their control, whether as owner or agent for another, on the first day of January next ensuing, personal property subject to municipal taxation, are required to deliver to him, at his office, on or before the fifteenth day of February next, lists of all such property, classified as required by law, with the true cash value thereof; and that all merchants doing business in the city are required within the same time to furnish to him, at his office, a true statement, verified by the oath or affidavit of such merchant, or hi s agent, of the highest amount in value of all goods, wares and merchandise owned or kept on hand for sale by such merchant, at any time within three months before such first day of January.”

While it is true that neither the original nor amended return to the writ of certiorari shows a compliance with, this statute, it is quite evident that the lists thereby required to be made out are solely for the convenience of the assessor, enabling him to make his assessments with the more expedition and accuracy; and as his failure' to comply with the statute in no way prejudiced the taxpayer, such failure does not, in our opinion, invalidate the assessment in question.

Section 5579, Revised Statutes 1899, among other things provides that the assessor and his deputies shall be authorized to administer oaths, and may require any person to verify any lists made by him, and may, by a notice delivered to any person or left at his residence, office or place of business, require such person, within five days, to deliver to him at his office any list or statement necessary for the purpose of making the assessment, and to verify the same by affidavit; and any person failing or refusing to verify such list, when so requested by the assessor, or to deliver and verify such list, when notified by the assessor so to do, shall forfeit to the city one hundred dollars; and the assessor shall assess such person according to the best information he can get, without stating the kind of personal property as provided by statute.

The return to the writ shows a substantial compliance by the assessor with this statute. It shows that he did call at the office of the corporation, at the time indicated, where he found the secretary thereof, and also called on the same day at the place of business of the president of the corporation, and presented to each of said officers a blank list, with the request thab they fill out said list and return it to him at his office, but that each of them refused to accept said blank list, or to have anything to do with it, or to fill it out and return the same to him. ' Having complied with the statute in this ‘respect, the assessor had the right and authority, upon the failure and refusal of the relator’s officers to make out and return to him a list of its personal property, to assess sncli property according to the best information be could get without stating the kind of personal property as provided in section 5577 of the statute.

That the assessor had jurisdiction of the subject-matter and of the corporation is indisputable, and, finding no reversible error in the record, the judgment of the circuit court is affirmed.

All concur.


source: Caselaw Access Project

author: GANTT, J. —

license: Public Domain

text:
    THE STATE v. J. T. HARP and VERNER GIBSON, Appellants.
    Division Two,
    March 17, 1908.
    1. LOCAL OPTION: Affidavit of Publisher. An objection to the certificate of the publisher of the newspaper in which was published the notice of the result of a local option election, made for the first time in the appellate court, comes too late. The objection in this case was that the word “Sept.” instead of October was inserted opposite the second date of the publication, and it is held, that this was a mere inadvertence, and had such objection been made at the trial other evidence could readily have been introduced to show the clerical mistake.
    2. -: -: Clerical Mistake. Where the local option election was held on September 15th, and the county court met on October 4th and ordered that publication of the result of the election be made, and the publisher’s certificate recites that the publication was made for five weeks consecutively, the last insertion being on November 10th, but in the schedule of the dates on which it was inserted in the paper recites September 13 as the first date, the court will not ascribe to the county court or clerk such a nonsensical act as the publication of the result of an election two days before the election was held, but the insertion of the word “Sept.” instead of October was a clerical error, and the trial court was justified in so holding, and no objection being made at the trial to the sufficiency of the certificate it will not on appeal be held insugicient.
    3. -: Constitutionality. The constitutionality of the Local Option Law is no longer an open question in this State.

      4. -: Selling Through Club. The evidence showed that, after the adoption of the Local Option Law in the county, the defendants were running what was known as an amusement company, in a clubhouse, consisting of two rooms, separated by a partition, in which was a door that was locked; that a witness bought a dollar’s worth of coupons in the front room, knocked on the door, and was admitted into the inner room, in which there was located a regular bar, such as is ordinarily found in a dramshop; that both defendants and some other persons were in this back room, and that he presented his coupons and received beer therefor. Held, sufficient to sustain a verdict finding defendants guilty of a violation of the Local Option Law.
    Appeal from Stone Circuit Court. — Eon. John T. Moore, Judge.
    Affirmed. *

      G. W. Thornsberry and J. W. George for appellants.
    The Local Option Law is unconstitutional; it is not general, but local, both as to the rules of its adoption and in its effects on the general public. The proof offered by the State shows conclusively that the result of the election was never published as provided by statute. The notice was published twice in September and twice in November, and was never published for four consecutive weeks, as required in section 3031,. Revised Statutes 1899. Under this statute local option did not take effect until the fourth publication of a notice published for four consecutive weeks, and they having assumed the burden of proving that local option had been legally adopted in Stone county, proved that it had-not been so adopted. If the State had not proved this fact the defendants would have offered- this, testifnony. State ex rel. v.‘Weeks, 38 Mo. App. 566; State v. Dugan, 110 Mo. 138; State -ex rel. v. Tucker, 32 Mo. App. 632.

      Herbert S. Hadley, Attorney-General, and Frank Blake, Assistant Attorney-General, for the State.
    (1) The constitutionality of the Local Option Law has been sustained in the following cases: State ex rel. v. Pond, 93 Mo. 606; State v. Handler, 178 Mo. 38; Ex parte Handler, 176 Mo. 383;,Ex parte Swan, 96 Mo. 44; State v. Moore, 107 Mo. 78; State v. Dugan, 110 Mo. 138; State v. Watts, 111 Mo. 553; State v. Wingfield, 115 Mo. 428; State v. Searcy, 111 Mo. 236. (2) The information is sufficient. State v. Searcy, 39 Mo. App. 393; State v. Hutton, 39 Mo. App. 410; State v. Prather, 41 Mo. App. 451; R. S. 1899, secs. 3032, 3035; State v. Handler, 178 Mo. 38; State v. Dugan, 110 Mo. 138. (3) Neither the motion for new trial nor the motion in arrest filed by appellant raised any objection as to the sufficiency of the affidavit showing publication of the result of the election, and counsel is not now in position to take any advantage, of any defect therein. State v. Baker, 36 Mo. App. 63; Peck v. Chouteau, 91 Mo. 138. (4) The Crane Amusement Company was only a scheme to sell liquors in evasion of the Local Option Law. State ex inf. v. Rose Hill Pastime Athletic Club, 121 Mo. App. 81; State ex inf. v. Kirkwood Social Athletic Club, 121 Mo. App'. 87.
   GANTT, J. —

On September 10, 1906, the prosecuting attorney of Stone county filed an information, duly verified, against the defendants, charging that in September, 1906, at said county, they unlawfully sold and disposed of intoxicating and fermented liquors in violation of the Act of the General Assembly of Missouri, approved on the 5th day of April, 1887,. commonly known as the “Local Option Law,” being articlé 3 of chapter 22 of the Revised Statutes of 1899 of said State, which had been adopted and was in-force within the county of Stone.

In due time the defendants were duly arraigned and entered their plea of not guilty. A jury was waived and the- cause was tried to the court at the October term, 1906, and they were found guilty and their fine assessed at three hundred dollars each. From that conviction they have appealed to this court. The only ground upon which this court has jurisdiction of the cause is that defendants challenge the constitutionality of the Local Option Law.

The evidence tended to show that along about the first of September, 1906, the defendants were running what was known as “The Crane Amusement Club,” at the town of Crane in the county of Stone. A witness testified that he bought a dollar’s worth of coupons from the defendants, for which he obtained beer. The club house consisted of two rooms with a partition about the middle. There was a door in the partition, which was locked, and the witness knocked on this door and was admitted into the inner room, in which there was located a regular bar, such as is ordinarily found in a bar room or dramshop. He found the two defendants and some others in this hack room after he had been admitted; he presented his coupon and received beer therefor. Both the defendants were in there and were dispensing liquors to their customers.

The records of the county court of Stone county were offered in evidence by which-it appeared that on August 7, 1905, a petition, signed by over one-tenth <of the qualified voters of Stone county, was filed in the county court, praying for an election to determine whether or not intoxicating liquors should he sold in said county. An order was made by the court, in due form, directing that a special election he held on September 15, 1905, notice of thé election to be given by publication in the “Crane Chronicle” for four consecutive weeks. This notice was in all respects regular and sufficient. Judges and clerks were duly appointed for the said election, and on the 18th day of September the county clerk called to his assistance two justices of the peace who examined and passed upon the returns of said election, from which it appeared that there were 414 votes for the sale of intoxicating liquors in said county and 766 votes against the sale of intoxicating liquors in said county, and there was a majority of 352 votes against the sale. A special term of the county court was duly called for October 4, 1905, at which the result of the election was reported to the court, and an order duly made that the result of said election be published in the “Crane Chronicle,” the same newspaper in which the original notice of the'special election had been published, for four consecutive weeks. It appeared from the affidavit of the publisher of this paper attached to a copy of the notice under the hand and seal of the clerk announcing the result of the said election, that he published it five consecutive weeks in said newspaper, the last insertion whereof was November 10, 1905' The only objection to the proof of the publication of this result interposed by the defendants counsel, was that it was not ordered published by the county court or any body having authority so to do, which objection was overruled and exceptions saved. This objection was evidently without merit, because the record of the county court distinctly shows that notice of the result ¡of said special election was ordered published in the “Crane Chronicle,” a weekly newspaper published in said county and State, being the same newspaper in which the notice of said special election had been published. In this court for the first time the defendants attack the certificate of the publisher, on the ground that it did not show that the four insertions had been properly made, but no objection was made when this certificate and affidavit was offered in evidence, and it is too late to make it for the first time in this court. The objection is evidently based upon the fact that the word “Sept.” is inserted opposite the insertion of the second date of the publication, but the court evidently found that this was simply an inadvertence, and had such objection been made at the time, other evidence could' readily -have been introduced to have shown this clerical mistake.

The order of the court requiring notice of the result of the Local Option election held on September 15, 1905, to be published, was not made until October 4, 1905, and the first insertion was the- 13th. We are not to ascribe to the court or clerk such a nonsensical act as the publication of the result of an election two days before it was held. Besides, when the affidavit of the printer is considered, that the publications were-made five weeks consecutively, the last on November 10, 1905, the clerical mistake in using the word “Sept.,” opposite the second insertion, becomes perfectly apparent and the court was fully justified in finding all the publications were made in October and November, 1905, and could not have been made in September." Had such an objection been called to the attention of the circuit court doubtless the files of the paper could have been produced and the proof of the notice fully established, notwithstanding the careless form of the affidavit.

As to the point raised as to the constitutionality of the Local Option Law, it must suffice to say that it has been held constitutional by this court in numerous cases, beginning with State ex rel. Maggard v. Pond, 93 Mo. 606, down to and including State v. Handler, 178 Mo, 38, and it is no longer an open question in this court.

It follows that there is no error in the record and the judgment is affirmed.

Fox, P. J., and Burgess, J., concur.


author: BURGESS, J. —

text:
    BROWN, Appellant, v. TRINIDAD ASPHALT MANUFACTURING COMPANY.
    Division Two,
    March 17, 1908.
    1. CONTRACT: To Sell or to Manufacture? Where the contract is upon its face clearly one of purchase and sale, and the petition alleges that plaintiff “sold and had for some time thereto heen selling to the defendant asphalt produced and manufactured by plaintiff, and that defendant neglected, failed and refused at and during the time in said contract specified therefor, or at all, to purchase and pay for the asphalt in said contract by it agreed to be purchased and paid for,” it will not be held to be a contract to manufacture, although it reveals a seeking ■ by defendant of an exclusive agency for certain territory for the sale of the asphalt manufactured by plaintiff.
    2. -: Sale: Breach: Measure of Damages. And such contract being one of purchase and sale, and defendant having failed to perform, plaintiff can recover only nominal damages, if he has no evidence of the market value of the asphalt sold. He is not entitled to recover the cost value to plaintiff of the asphalt or the contract price.
    3. -: -: -: -: General Rule. Where the vendor sues the vendee for the non-acceptance of property sold ■ ' or contracted for, the breach on the vendee’s part being admitted, the measure of damages is the difference between the contract price and the market value at the time and place of delivery.
    4. -: -: -: -: -: Presumption of Goods On Hand: Nominal Damages. In a contract for the sale of property the presumption is that the vendor has the • property on hand, there being no evidence to the contrary, and the vendee having refused to accept the property according to the terms of the contract, the vendor is entitled to recover as damages the difference between the contract price and the market price, if any, of his 'goods. And if no market price is shown, he can recover only nominal damages.
    Appeal from St. Louis City Circuit Court. — How. Moses N. Sale, Judge.
    Affirmed,

      Virgil Rule and Bland & Cave for appellant.
    (1) The contract, for the breach of which this suit was brought, is a contract to manufacture. The situation of the parties, plaintiff being, and being known by defendant to be, a manufacturer, and defendant seeking to obtain the exclusive agency in certain territory for the sale of plaintiff’s goods, and their previous dealings, clearly indicate that this contract was understood to be a manufacturing contract, and the contract itself, when' taken in its entirety, can bear no other interpretation. Geo. Delker & Có. v. Hess Spring & Axle Co., 138 Fed. 647; Western Hardware Company v. Bancroft-Charnley Steel Co., 116 Fed. 176; Gardner v. Deeds & Hirsig, 4 L. R. A. 742; HadleyDean Glass Company v. Highland'. Glass Co., 143 Fed. 242; Chapman v. Railroad, 114 Mo. 542, 146 Mo. 481 ; Berthold v. Const. Co., 165 Mo. 280. (2) Defendant, under the contract, had the option of ordering all the asphalt provided for of any one grade, saving and excepting “B” grade, of which it was limited to 10% of the total amount, or'from all of the grades,'and it was defendant’s duty to give to the plaintiff, from time to time, during the continuance of the contract, reasonable notice of the grades and amounts it desired, and there was no obligation resting on the plaintiff to manufacture the asphalt until it was so ordered. Ault v. Dustin, 100 Tenn. 366; George Delker & Co. v. Hess Spring & Axle Co., supra; Kingman & Company v. Western Mfg. Co., 92 Fed. 486. (3) (a) Defendant having failed to order the asphalt, plaintiff was not warranted in manufacturing it and throwing it on the market and thereby increasing, perhaps, the damages. And, if he had done so, such action would not be binding on defendant. Kingman Mfg. Co. v. Western Mfg. Co., 92 Fed. 486; Gardner v. Deeds & Hirsig, supra; Belle of Bourbon Co. v. Leffler, 84 N. Y. S. 385; Cameron v. White, 74 Wis. 425'. (b) Nor was plaintiff obligated to make other contracts for asphalt for the unexpired time. He had the right to make as few or as many other contracts as he saw fit whilst executing the contract with defendant, and he is entitled to the profits which he might have made on this particular contract. Crescent Mfg. Co. v. Nelson Mfg. Co., 100 Mo. 325. (4) Under all the authorities he was clearly entitled to compensation for the breach of defendant, and his compensation is to be measured by the profit he would have made if he had been permitted to complete the contract — the difference between the cost of manufacture and the contract price. Where a contract for the manufacture and delivery of goods is repudiated by the vendee before the goods are manufactured, the measure of the vendor’s damages is the difference between the contract price and the cost of manufacture. Hadley-Dean Glass Co. v. Highland Glass Company, supra; Western Hardware Co. v. Bancroft-Charnley Steel Co., supra; Gardner v. Deeds & Hirsig, supra; Kingman v. Western Mfg. Co., supra; Black River Lumber Co. v. Warner, 93 Me. 374; Crescent Mfg. C'o. v. Nelson Mfg. Co., 100 Mo. 325; Hammond v. Beeson, 112 Mo. 198; Chapman v. Railroad, 146 Mo. 481; Bert-hold v. Const. Co., 165 Mo. 280 ; Roehm v. Horst, 178 IT. S. 1; Beardsley v. Smith, 61 111. App. 340; .and numerous cases cited in 4 L. R. A. at page 742, note; Hale v. Trout, 35 Cal. 229; Winaus v. Lumber Co., 66 Cal. 61. •

      W. B. Homer for respondent.
    (1) “The general and just rule for measuring the damages for the breach of a contract for the sale of personal property is the difference between its market value and its contract price, because the vendor is presumed to have the property on hand; and his profits, if the contract is performed, and the loss if it is broken, is the difference between the price he can sell the property for in the market, and the price he is entitled to receive under the contract. ’ ’ Rickey v. Ten Broeck, 63 Mo. 567; Halliday v. Lesh, 85 Mo. App. 289; Black River Lumber Co. v. Warner, 93 Mo. 374; Gaibout v. Clark, 24 Mo. App. 426; Campbell v. Woods, 122 Mo. App. 719; Parlin v. Boatman, 84 Mo. App. 67; Bank v. Ragsdale, 171 Mo. 168; Nelson v. Hirsch, 102 Mo. App. 498; Kingman v. Western Mfg. Co., 92 Fed. (C. C. A.) 486. (2) The purpose of pleading, when such pleading relates to a written document, is to make clear to the court the legal effect of such document. Anderson v. Gains, 156 Mo. 669; Hood v. Nicholson, 137 Mo. 414, (3) Where it is attempted to fix the damages of a failure to accept property sold as other than the difference between the market value and the agreed price upon the ground that there is no market value for the property, the burden rests on the plaintiff to show that there is no market value at the place of delivery. Masterton y. Mayor, 7 Hill 61; Todd v. Gamble, 21 N. Y. Supp. 7391, 67 Hun 38. (4) Where it is claimed that a party is entitled to profits as part damages, it is necessary to set out such profits in the petition. Wilson v. Russler, 91 Mo. App. 281; Ridgeley v. Mooney, 16 Ind. App. 362, 45 N. E. 348; Tufts v. Bennett, 163 Mass. 398.
   BURGESS, J. —

Plaintiff brought suit to recover of the defendant six thousand dollars damages for breach of contract.

After alleging the incorporation of the defendant company under the laws of Missouri, with chief office and place of business in the city of St. Louis, the petition proceeds as follows:

“Plaintiff states further that on November 21, 1900, and at all times hereinafter mentioned, he was engaged in business in the city of Los Angeles, county of Los Angeles, State of California, under the commercial name, style and title of the Southern Refining Company; that the business in- which he was engaged under said name was that, among other things, of manufacturing, producing, dealing in and selling asphalt, and on said date he sold, and had for some time prior thereto been selling, to the defendant asphalt produced and manufactured by him under the name and style aforesaid.
“Plaintiff states further that on said 21st day of . November, 1900, at the city of Los Angeles, State of California, plaintiff and defendant, by and through its agent, entered into a certain contract, hereinafter more specifically set forth, which said contract was made and delivered subject to the ratification thereof by defendant’s board of directors, and was thereafter by said board of directors, on the 27th day of November, 1900, duly ratified, approved and accepted.”

The petition then alleges “that by said contract, for and in consideration of the covenants and stipulations therein mentioned to be kept and performed by plaintiff and defendant, plaintiff agreed to sell and deliver to defendant, f. o. b. cars at plaintiff’s factory in the city and county of Los Angeles, 12001 tons of asphalt, and defendant agreed to purchase and pay for said asphalt according to grade and prices hereinafter specifically set forth;” and further alleges “that it was agreed between plaintiff and defendant that said asphalt should consist of the following grades, sold and purchased at the following prices.” Here follow five different grades of asphalt at certain prices per ton, which grades are described as “B”, “C”, “D”, “DX” and “Gr”. After certain other allegations which are unnecessary to be stated here, the petition proceeds:

“Plaintiff states that thereafter, and beginning with the month of January, 1901-, he and defendant entered into the execution of said contract, and' that at and during all the times in said contract mentioned plaintiff was able, ready and willing to perform, and did duly perform all the conditions on his part in such contract covenanted and agreed therein by him to be performed, bnt that after so entering upon the execution of said contract defendant neglected, failed and refused to perform the conditions on its part in said contract covenanted and agreed to be by it performed, and defendant neglected, failed and refused at and during the times in said contract specified therefor, or at all, to purchase and pay for the asphalt in said contract by it agreed to be purchased and paid for, any quantity in excess of three-hundred and seventy-five and 1445-2000 tons, by reason whereof plaintiff has been damaged in the sum of six thousand dollars.
“Wherefore plaintiff prays judgment against defendant for said sum of six thousand dollars, together with interest thereon from the first day of January, 1902, and for his costs in this behalf expended.”

The material parts of the contract introduced in evidence are as follows:

“That for and in consideration of the covenants and stipulations hereinafter mentioned to be kept and performed by the respective parties.hereto, it is hereby agreed between said parties as follows:
“That first party [plaintiff] will sell and deliver to said second party [defendant] hereto, f. o<. b. cars at first party’s factory, in said city and county of Los Angeles, twelve hundred tons of asphalt, and that said second party will purchase and pay for same,' said asphalt to be so delivered at the rate of one hundred tons of two thousand pounds each, gross weight, per month, or as near such rate as shipment in carload lots will permit. That said asphalt shall consist of the following grades, and be sold and purchased at the following prices, to-wit:
“B grade of asphalt cement, at $21.00 per ton;
G ?? ” J J ?? 17 00 ? 7 ?5
D 99 9 9 99 ” ” 15.50 ” ”
DN ” ” ” ” ” 15.50 ” ”
G ” ” liquid asphalt ” 18.00 ” ”
aud be of first class quality and equal to the grades heretofore supplied by first party to second party, provided however, that in no event shall the proportion of ‘B’ grade of asphalt exceed ten per cent of the total amount of asphalt hereinbefore and hereinafter provided for, and that in making shipments, the said B grade of asphalt to be of no more than ten per cent of the total amount furnished and shipped in any one month. ...
“It is further agreed that said second party instead of confining itself to said twelve hundred tons of asphalt per year, with rate of deliveries at one hundred tons per month, may have the privilege of purchasing on like terms, an additional twelve hundred tons per year, making a total purchase of twenty-four hundred tons per year, .with total rates of delivery at two hundred tons per month; said privilege to be exercised by giving first party three months’ written notice of its desire to take said twenty-four hundred tons of asphalt per year with deliveries at said rate of two hundred tons per month, and in case said second party so elects to take said twenty-four hundred tons per year, it shall do so for a full period of one year, notwithstanding this agreement would otherwise end if one hundred tons per month only were taken.
“It is further agreed that in case second party purchases said twenty-four hundred tons of asphalt per year, to be delivered at the rate of two hundred tons per month as aforesaid, then the prices which it shall pay therefor shall be as follows: [Prices omitted.]
“It is further agreed that in the event of said second party purchasing said twenty-four hundred tons of asphalt per year, that then during such time as it purchases and pays for the same in such quantities, the first party will not sell any of said grades of asphalt to any persons or parties for nse in that territory of the United States lying east of the Rocky Mountains, it being the intention that so long as second party purchases twenty-four hundred tons per year from first party, deliveries thereof at the rate of two hundred tons per month, that the first party will not compete with it in said designated territory — it being stipulated and understood, however, that this provision shall be in force and effect only in case second party elects to purchase twenty-four hundred tons per year on or before January 1, 1902.
“It is further agreed that this contract is made to cover sales, purchases and deliveries for the period of one year from January 1, 1901, with a privilege to said second party of a renewal of the same from year to- year for a period of four years in addition— the election of said second party to so renew the same to be manifested by giving first party a written notice thereof at least forty days before the expiration of the year then current, in which this contract would otherwise end; and further provided, that the price at which first party is to sell, and which second party is to pay under such renewals, shall be based upon the cost of crude oil at said first party’s factory at Los Angeles, of the quality and character used by first party in manufacturing said grades. of asphalt, the same to be of clean, dry virgin oil of not less than eighteen degree gravity; in other words, the prices hereinabove fixed upon said grades of asphalt are based upon the price of said crude oil at $1.25 per barrel, but if during the time of any renewals of this contract, and in any event, upon the expiration of the first year, the market price of said crude oil should be $1.50 or above per barrel, f. o. b. cars at first party’s factory, then there is to be during the time of such increased price a proportionate increase in the price of said grades of asphalt; and, on the' other hand, if said market price of said crude oil f. o. b. cars at first party’s factory shall be $1 or less per barrel, then during the time the same is at said price there shall be a proportionate decrease in the price of said grades of asphalt.”

It was admitted that the contract was ratified by the board of directors of the defendant company, that a part of the asphalt contracted for was taken and paid for by defendant, and that it did not accept or receive the balance.

The evidence showed that the plaintiff was a manufacturer of products of petroleum at Los Angeles, California, and was conducting his business, as an individual, under the name of the Southern Refining Company; that he first began to sell asphalt to defendant in June, 1900, the first shipment being made on June 13, 1900.

The evidence further showed that in its letter to* plaintiff ratifying the contract, the defendant requested “that you will give us, on the 1,200-tons basis per year, the exclusive sale of your goods in the States of Missouri, Illinois, Indiana, etc., . . . that you should give us the exclusive agency for the States named, as we shall commence to thoroughly cover this territory. ’ ’

Plaintiff testified that during the period covered by the contract in suit, he was at all times ready to furnish the amount of asphalt as stipulated and provided for in the agreement, and that the asphalt that he did furilish to the defendant, under said contract, was the same in quality as he had been making right along, and the same as that theretofore furnished by him to defendant, and that it was a first class quality of asphalt. .

John J. Bacigalupi, on behalf of the plaintiff, testified that he had been in the oil and asphalt business several years, and had been in the employ of plaintiff, as secretary and superintendent, at Ms refinery in Los Angeles since 1899; that lie superintended the manufacture of asphalt, the purchasing of oils, shipping of products and the keeping of the hooks. He testified to the amount of shipments under the contract by the •plaintiff to the defendant, and that there were about 824 tons, under the contract, which defendant had not . taken of the goods described in the contract.

The following question was asked witness Bacigalupi: “Have you figured what the cost to Mr. Brown was of those various grades, placed f. o. b. cars, at Los Angeles?” An objection to this question was sustained, and the court made the following ruling:

“There is a way of establishing a market value of an article that has a market value without taMng it to market and offering it for sale. You could recover damages without manufacturing a pound yourself. At the time the defendant notified you they would not accept the stuff, your damages became complete. You are entitled to receive the market price on the day or about the day — I would not limit you to a day or week, or probably a month, unless there was some violent fluctuation.”

Plaintiff admitted that he had no evidence of the market value of this product, and offered no further evidence in the case.

At the request of the defendant, the court instructed the jury that under the pleadings and the evidence the plaintiff’s recovery was limited to nominal damages, or the sum of one dollar.

Plaintiff took a nonsuit with leave to move to set it aside. Upon filing his motion for such purpose, it was overruled by the court, whereupon plaintiff appealed.

Plaintiff’s first contention is that the contract for the breach of which this suit is prosecuted is a contract to manufacture. It is argued that the situation of the parties, their previous dealings, the seeking by defendant to obtain the exclusive agency for certain territory for the sale of plaintiff’s goods, and the fact that defendant knew that plaintiff was a manufacturer, all indicate that this contract was understood to be a manufacturing contract, and that the contract itself, when» taken in its entirety, can bear no other interpretation. On the other hand, defendant insists that the contract is one of purchase and sale, and that the amount of damages assessable against it for the breach is the difference between the contract price and the market price of the asphalt contracted for and which it failed to take.

The contract, upon its face, is clearly one of purchase and sale; and the petition alleges that on the 21st day of November, 1900, “he [plaintiff] sold, and had for some time prior thereto teen selling, to- the.- defendant asphalt produced and manufactured by him under the name and style iaforesaid;” and that “defendant neglected, failed and refused at and during the times in said contract specified therefor, or at all, to purchase and pay for the asphalt in said contract by it agreed to be purchased and paid for.” There is no allegation in the petition to the effect that the asphalt contracted for was to be manufactured by the plaintiff, or that it had been manufactured by him, for the defendant; nor is there anything in the contract to that effect. The contract says, “that first party [plaintiff] will sell and deliver to said second party [defendant] hereto, f. o. b. cars at first party’s factory, in said city and county of Los Angeles, 1,200' tons of asphalt, and that said second party will purchase and pay for same. . . . It is further agreed that said second party instead of confining itself to said twelve hundred tons of asphalt per year, with rate of deliveries at one hundred tons per month, may have the privilege of purchasing on like terms an additional twelve hundred tons per year. . . . It is further agreed that in the event of said second party purchasing said twenty-four hundred' tons of asphalt per year, then during such time as it purchases and pays,” etc.

When the contract is considered as a whole, it is not ambiguous.

The Western Hardware Co. v. Bancroft-Charnley Steel Co., 116 Fed. 176, was a suit for damages for the breach of three certain contracts in writing, by the terms of which the Bancroft-Charnley Steel Company agreed to sell and the Western Hardware Mfg. Co. of Milwaukee agreed to buy certain articles therein named, and at the prices agreed upon. The making of the contracts and the failure to deliver were admitted, but the defendant in error alleged as a defense, under certain provisions of the contracts, the destruction of its mill by fire in Chicago, where it was contemplated by the contracts the iron should be manufactured. The contracts contained a provision that defendant should not be liable for any loss or damage arising from non-fulfillment by reason of fire, strikes, etc., and a further and separate provision that “the sellers are permitted, if they desire, to transfer this contract to any manufacturers of reputable standing.” Defendant was the owner of an iron-mill, and its business was the manufacture of iron such as that covered by the contracts. Held, that the contracts were to be construed with reference to such known facts, and were contracts for the manufacture and sale of goods, and not merely of bargain and sale; that, on the destruction of defendant’s mill by fire before the contracts had been fully performed, it was absolved under their terms from further performance, and was not required to purchase the iron elsewhere, or to transfer the contracts.

It is true that the contract in that case did use the words “buy and sell,” but all other provisions of the contract showed that it was the intention of the parties that the goods should he manufactured in accordance with specific directions of the purchaser. The seller in that case was engaged solely in the manufacturing business, and was not engaged in the business ■of buying and selling iron. It had no place for such business. The contract provided that in case of “being prevented by fire, strikes and manufacturing contingencies, the seller should not be liable upon the contract,” and the court so held.

The case of George Delker Co. v. Hess Spring & Axle Co., 138 Fed. 647, is of much the same character, the Hess Spring & Axle Co. of Carthage, Ohio, agreeing to sell and George Delker Co., of Henderson, Kentucky, agreeing to buy a quantity of steel axles and springs at the prices and upon the terms and conditions stated in the contract. It was also provided in the contract that the manufacturer .should purchase certain specified material to be used in the manufacture of the goods, and that he should not be liable upon his contract in case of strikes. The court in effect held, and properly so, that the contract was for the sale and purchase of articles to be manufactured.

In the case of Hadley-Dean Plate Glass Co. v. Highland Glass Co., 143 Fed. 242, the Highland Glass Company, a Pennsylvania corporation, engaged in the manufacture of glass in that State, received and accepted from the plaintiff, a Missouri corporation, carrying on the business of a jobber and dealer in glass at St. Louis, an order for the manufacture and delivery of glass of certain description. The order was “Book us with;” then followed a description of the glass. There was no •question raised as to the character of the contract, that is, whether it was one of purchase land sale or a manufacturing contract; but the court held that it was intended by the parties thereto as a contract to manufacture the goods which were to be booked.

There was no discussion of this question in the case of Chapman v. Railroad, 114 Mo. 542, Chapman v. Railroad, 146 Mo. 481, or Berthold v. Construction Co., 165 Mo. 280; nor was such question passed upon.

In this case there is no evidence as to whether or not the plaintiff had the goods on hand at his factory to he delivered to defendant, f. o. b., at the times stated in the contract. It is true, plaintiff testified that- during the period covered by the contract, he was at all times ready to furnish the amount of asphalt as stipulated and provided for in the agreement, but this by no means shows whether he had the material on hand, or whether he was depending upon going into-the markets and purchasing it.

The contract being one for the purchase and sale of the asphalt, and the defendant having admitted its failure to comply with the terms of the contract, the question is as to the measure of damages. "When a vendor sues the vendee for the non-acceptance of property sold or contracted for, the measure of damages is the difference between the contract price and the market value of the property at the time and place of delivery. [Rickey v. Tenbroeck, 63 Mo. 563; Black River Lumber Co. v. Warner, 93 Mo. 374; Northrup v. Cook, 39 Mo. 208; Koeltz v. Bleckman, 46 Mo. 320; Warren v. Mayer Mfg. Co., 161 Mo. 112; Parlin & Orendorff Co. v. Boatman, 84 Mo. App. 67; Halliday & Co. v. Lesh, 85 Mo. App. 285.] In a contract for the sale of property the presumption is that the vendor has the property on hand, and as there is no evidence to the contrary in this case, the presumption is that the plaintiff had the property ready to deliver, and the defendant having refused to accept the property according to the terms .of his contract, plaintiff is entitled to recover as damages the difference between the contract price and the market price, if any, of his goods.

The case of Kingman & Co. v. Western Mfg. Co., 92 Fed. 486, relied upon by plaintiff, announces the law as to the measure of damages in case of sale and non-acceptance of personal property as follows: ‘ ‘ The-general and just rule for measuring the damages for the breach of a contract for the sale of personal property is the difference between its market value and its contract price, because the vendor is presumed to have-the property on hand; and his profits if the contract is performed, and his loss if it is broken, is the exact difference between the price he can sell the property for in the market and the price he is entitled to receive for it under the contract.”

It devolved upon the plaintiff to prove his damages by the introduction of evidence of the market value of the asphalt at the place of sale and delivery, and having failed in this, he is not entitled to recover anything more than nominal damages, unless he expects to recover damages upon some other theory, in which event it rests upon him to show- that there was no market, value.

In Masterson v. Mayor, etc., 7 Hill 61, it was held that when one party to an executory contract puts an end to it (as did the defendant in the case at bar), by refusing to fulfill it, the other party is entitled to an equivalent in damages for gains or profits which he would have realized if the contract had been performed. The court said.: “The only difficulty or embarrassment in applying the general rule grows out of the fact that the article in question does not appear to have any well-ascertained market value. But this cannot change the principle which must govern, but only the mode of ascertaining the actual value of the article, or rather the cost to the party producing it. "Where the article-has no market value, an investigation into the constituent elements of the cost to the party who- Has contracted to furnish it becomes necessary, and that, compared with the contract price, will afford the measure of damages.”

Later on, in the same case, it is said: “If there was a market value of the article in this case, the question would be a simple one. As there is none, however, the parties will be obliged to go into an inquiry as to the actual cost of furnishing the articles at tbe place of delivery; and the court and jury should see that in estimating this amount it be made upon a substantial basis, and not left to rest upon tbe loose and' speculative opinion of witnesses.” ' «

As there was no evidence of the market value of the asphalt at the place of delivery, nor of the actual cost of furnishing it at that place, the court had no substantial basis upon which to estimate the damages,' but was left to mere conjecture with respect thereto. Under the pleadings and evidence, plaintiff was only entitled to recover nominal damages, and the court did not err in so holding.

The judgment is affirmed.

All concur.