author: WALKER, J.

text:
    THE STATE v. CHARLES E. McWILLIAMS.
    Division Two,
    March 31, 1916.
    1. INFORMATION: Sufficiency: Embezzlement. Where the . statute sets out the specific facts constituting the crime, as does Sec. 4550, R. S. 1909, concerning embezzlement, an information based thereon which is definitively descriptive of the offense as-defined therein, is sufficient.
    2. -: -: -: Intent. Where the embezzlement consists of doing the act itself, that is, where it consists of the fraudulent conversion of money by one to whom .it has been intrusted, the information need not allege the intent with whieh the act was done, since the criminal intent will be inferred from the fraudulent conversion.
    3. -: Former Jeopardy: Based on Assumption. A defendant cannot be put in peril by being placed upon his trial under an invalid amended information upon the assumption that a valid information was then pending undisposed of. To constitute former jeopardy there must have been a valid information or indictment charging the same offense, and in a proceeding under that valid information or indictment a jury must have been impaneled and sworn for defendant’s trial.

      4. -: -: Amended Information: Quashed: Former Restored. An information, in one count, charging defendant with embezzlement, was filed in one county, and after the case was transferred to another county the prosecuting attorney of the first filed an amended information in two counts, the first charging embezzlement of money, and the second embezzlement of a check, and a jury was impaneled and sworn and the trial proceeded, but before a verdict was rendered the court, of its own motion, quashed the amended information and ordered defendant to be held for trial under the original information. Held, that by being put upon his trial on the amended information defendant was not, because of its invalidity, put in jeopardy under the original valid information.
    5. CONTINUANCE: Contradictory and Insincere Application. An application for a continuance, which is inconsistent, contradictory, does not import the truth as to defendant’s knowledge of what the absent witness would testify and does not show reasonable diligence, should be denied.
    6. ---: Diligence: Deposition. Where the application states that the defendant had sent to the absent witness money with which to pay her traveling expenses from another State to the place of trial and that she had agreed- to attend, the trial court would be justified in granting a continuance, if the allegation therein of defendant’s recent knowledge of what her testimony would be bears the impress of truth; but if the facts reveal that he did know what her testimony would be, then proper diligence required him to take her deposition, and having failed to do that the trial court did not abuse its discretion in denying the application.
    7. .EMBEZZLEMENT: Agency of Loan Agent. Where the borrower called at defendant’s office to employ him to secure a loan of $3400, and gave him a note for $127.50 for his services in that behalf, and in addition signed an order directed to the loan company in which he requested that the proceeds of the loan be paid to defendant and in which he said he thereby appointed defendant his agent to settle with the company for said loan, and the loan company, after deducting its own commission, sent a check payable to defendant for the balance, the defendant was the agent of the borrower, in all that was necessary to establish the relation of agency, in a prosecution for. having embezzled the proceeds of the check.
    8. -:--: Circumstances. Circumstances arising out of a transaction, even in establishing the fact-that defendant, charged with embezzlement, was the borrower’s agent, are sometimes as strong in probative force as sworn testimony.
    9. -: Ownership of Check. Where the loan company contracted to loan $3400 to a farmer, to be evidenced by his note, which was to be secured, by a deed of trust on his land, and upon the receipt of the note and deed of trust executed by him caused the deed of trust to be recorded, and forwarded a cheek for the amount of the note less commission, payable to defendant, the agent who had negotiated the loan, the company parted witn the title to the check, and the nominal ownership passed to defendant; and it thereafter became his duty to either indorse it to the farmer, or convert it into cash and pay the proceeds to him, or apply it to the discharge of a prior lien for which the money had been borrowed; but as it was indorsed and placed to defendant’s credit in the bank, his act became embezzlement of the money when he drew it out and without the farmer’s consent converted it to his own use.
    10. -: Felonious Intent: Concealment. A defendant’s felonious intent, in a charge of embezzling his principal’s money, is to be measured by his acts; and it may be shown by his evasion of his principal, a concealment from him of the fact that he has received the money, and a neglect or refusal to account for it.
    11. -: -■-: Use of Money. Where defendant is charged with embezzling money, in that he as the agent of a-farmer undertook to borrow for him a sum of money to be used in paying off a farm mortgage, and when the check for the loan was sent to .him it was deposited to his own credit in a bank and drawn out for his own personal uses, it is not error to permit an officer of the loan company to testify that defendant had not used the money in paying off the prior lien on the land, nor returned it to the company.
    12. -: -: Depositing Check. Nor under such circumstances is it error to permit the State to show that the check payable to defendant’s order and received bv him was indorsed and deposited to his credit in a bank, and later checked out by him.
    13. -: -: Other Loans. Where the defendant was the agent of the borrower in a particular case and was authorized to receive the proceeds' of the loan from a certain company, whatever relationship he may have sustained to that company in previous or subsequent like transactions can have no bearing upon the issue of whether he embezzled the money received by him in that case.
    Appeal from Daviess Circuit- Court. — Hon. Fred Lamb, •Judge.
    Affirmed.

      W. 8. Herndon, R. H. Musser, John Leopard and Paul D. Kitt for appellant.
    (1) The court erred in overruling defendant’s motion to quash the information. The information did not contain an essential element of the offense, viz., the intent. This information is based on the first subdivision of Sec. 4550, R. S. 1909. State v. Lentz, 184 Mo. 234; 15 Cyc. 491. When the intent with which an act is done is a necessary ingredient of the offense it must be alleged in the information. Kelley’s Criminal Law & Practice (3 Ed.), see. 199; State v. Haney, 130 Mo. App. 95; State v. Dowd, 95 Mo. 163; State v. McCollum, 44 Mo.. 345; State v. Burke, 151 Mo. 136; 22. Cyc. 329; 15 Cyc. 513. (2) The court erred in overruling the demurrer to the evidence offered by defendant at the close of the State’s evidence, and in overruling the demurrer offered by defendant at the close of all the evidence, and in refusing to give instruction number 1 requested by defendant, because: (a) In order to constitute embezzlement, as agent, as charged in the information, the accused must occupy the designated fiduciary relation and the money or property must belong to his principal, the one designated and named in the information, and come to the possession of the defendant by virtue of that relation. State v. Brown, 171 Mo. 480; Griffen v. State, 4 Tex. App. 390; State v. Myers, 68 Mo. 266; State v. Dodson, 72 Mo. 283; State v. Moreaux, 254 Mo. 406 ; Ex Parte Hedley, 31 Cal. 108. Appellant was not the agent, clerk, collector and servant of Gregor and did not receive this check or money as agent, etc., of Gregor; nor did the check or money come to him by virtue of his relation, if any, to Gregor, nor in the course of his employment, if any, by Gregor; it came to defendant by virtue of defendant’s relation to iBiartlett Brothers Land & Loan Company and as that company’s agent or bailee. Day v. Dages, 46 N. E. 589; Jensen v. Investment Co., 53 N. W. 179; Figley v. Bradshaw, 53 N. W. 148; McLean v. Ficke, 62 N. W. 753; Ins. Co. v. Jones, 27 Pac. 807; Gibson v. Davenport, 29 Ohio St. 309; Stockton v. Watson, 101 Fed. 490; Bowman v. Lickey, 86 Mo. App. 47; Savings Fund Society v. Bank, 36 Pa. St. 498, 78 Am. Dec. 390; Insurance Company v. Ives, 56 111. 402. The check or money in question did not belong to Gregor but belonged to Bartlett Brothers Land & Loan Company, or someone whom they represented; it had not been turned over unconditionally as Gregor’s money; the title to the check and money still remained in Bartlett Brothers Land & Loan Company. State v. Cooper, 71N. W. 197; Bowman v..Lickey, 86 Mo. App. 47; Guthrie v. Waite, 129 Mo. App. 587; Plow Co. v. Porter, 82 Mo. 23. (b) The check or money was not received by defendant as agent, clerk, collector or servant of Gregor, but it was received by him, as agent of .Bartlett Brothers Land & Loan Company, or a bailee or trustee for a certain purpose, viz.: to apply as payment on the mortgage on Gregor’s farm. State v. Castleton, 255 Mo. 201; State v. Myers, 68 Mo. 266; State v. Betz, 207 Mo. 589; 3 Ruling Case Law, sec. 2, p. 72; Sec. 4552, R. S. 1909. A bailment is defined to be a delivery of a thing in trust for some special object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. Watson v. State, 70 Ala. 13, 45 Am. Rep. 70; Story on Bailments (9 Ed.), sec. 2; 5 Cyc. 161-170; Railroad v. Railroad, 61 N. J. L. 287; 3 Am. & Eng. Ency. Law, 733; Knapp v. Knapp, 118 Mo. App. 685; Guthrie v. Waite, 129 Mo. App. 587. (c) If defendant was guilty of the offense of embezzlement it was not of money, but of the check sent him by Bartlett Brothers Land & Loan Company; if guilty of embezzlement at all he was guilty of wrongful conversion the moment he cashed the check and placed the money to his credit; this was contrary to his instructions. State v. Castleton, 255 Mo. 210; State v. Schilb, 159 Mo. 142; State v. Mispagle, 207 Mo. 574; Sansberry v. State, 59 So. 340; State v. Cross-white, 130 Mo. 355; State v. Salmon, 216 Mo. 522; Spaulding y. People, 172 111. 55; 2 Bishop’s New Criminal Law, secs. 372-373-379. (3) The court erred in refusing to sustain the defendant’s plea in bar and of former jeopardy. The State haying admitted the facts stated in the plea in bar, to be true, it then became a question of law, on the facts stated, and was equivalent to a demurrer to the plea. State v. Anderson, 186 Mo. 25; State v. Wiseback, 139 Mr. 214. The facts set forth in the plea in bar, show that the defendant was in jeopardy, and that the plea should have been sustained. Article 5', Amendments Constitution United States; Cooley Const. Lim. (6 Ed.), 399; Secs. 22, 23, 28 and 30, article 2, Constitution Missouri; State v. Snyder, 98 Mo. 555; State v. Hays, 78 Mo. 605; State v. Webster, 206 -Mo. 558; State v. Keating, 223 Mo. 86; State v. Wiseback, 139 Mo. 214. Tbe act of tbe court in discharging tbe jury must be. treated as an acquittal of tbe defendant. 12 Cyc. 261-270, and cases cited in Notes 85-86 and 87, p. 270; Kelley’s Criminal Law and Practice (3 Ed.), sec. 229; State v. Webster, 206 Mo. 558; Cooley on Constitutional Limitations (7 Ed.), 467; State v. Webster, 206 Mo. 558. Tbe court erred in overruling defendant’s application for a continuance.

      John T. Barker, Attorney-General, and Shrader P. Howell, Assistant Attorney-General, for tbe State.
    (1) Tbe information in this case is in an approved form and is sufficient in all respects. Sec. 4550, R. S. 1909; Kelley’s Crim. L. & Pr., sec. 675; State v. Adams, 108 Mo. 211; State v. Mohr, 68 Mo. 303; State v. Lipscomb, 160 Mo. 131; State v. Shour, 196 Mo. 205. In charging tbe completed offense of embezzlement it is unnecessary to further allege that such act was committed with the intent to deprive the owner of the property so converted. State v. Larew, 191 Mo. 199; State v. Cunningham, 154 Mo. 179; State v. Lentz,. 184 Mol 237; State v. Silva, 130 Mo. 463'; State v. Martin, 230 Mo. 690; State v. Adams, 108 Mo. 214. (2) The plea of twice in jeopardy will not avail where the former trial was based upon an invalid information. State v. Keating, 223 Mo. 94; State v. Manning, 168 Mo. 429; State v. Owen, 78 Mo. 374; State v. Wilson, 39 Mo. App. 187; State v. Bnente, 256 Mo. 241; Kelley’s Crim. L. & Pr., sec. 229. In this case the trial had on the amended information was a nullity for the reason that the prosecuting attorney of Livingston County was without authority to file an amended information in the circuit court of Daviess County. State v. Bartlett, 170 Mo. 672; State v. Vinso, 171 Mo. 585; State v. Billings, 140 Mo. 204; State v. Blunt, 110 Mo. 337. Upon the quashing of the amended information the valid original information resumed its full force and effect. Sec. '5102, R. S. 1909; State v. Mayer, 209 Mo. 396; State v. Melvin, 166 Mo. 572; State v. Anderson, 96 Mo. 245; State v. Williams, 191 Mo. 212; State v. Vincent, 91 Mo. 665. (3) This court will not interfere with the finding of the trial court where the record on appeal shows substantial evidence to support the verdict returned. State v. Concelia, 250 Mo. 424. Under the facts of this case it is manifest that the defendant was constituted and recognized by all parties concerned as the agent of the borrower as charged in the information. May v. Ins. Co., 72 Mo. App. 290;: Robinson v. Jarvis, 25 Mo. App. 427; County v. Groggin, 105 Mo. 191; Robinson v. Kreisel, 187 Mo. App.' 55; Mortgage Co. v. People, 102 Ala. 245; Mortgage Co. v. King, 105 Ala. 392; Cooper v. Headley, 12 N. J. Eq. 48; Johnson v. Shattuck, 67 Ark. 159; Thomas v. Demsey, 57 Iowa, 58; Engleman v. Rense, 61 Mich. 395... The testimony submitted on the trial was amply sufficient to show that the defendant converted and embezzled the money as charged. State v. Wissing, 187 Mo. 106; State v. Laughlin, 180 Mo. 361; State v. Martin, 230 Mo. 697.
   WALKER, J.

In November, 1913, appellant was charged in an information filed in the circuit court of Livingston County with embezzlement, under section 4550, Revised Statutes 1909. Upon a trial in the circuit court of Daviess County, to which the case had been transferred by change of venue, appellant was convicted and sentenced to four years’ imprisonment in the penitentiary. The original information was in one count. Appellant moved to quash same on the general ground that it did not state facts sufficient to constitute a cause of action. This motion was by the court overruled. After the case had been transferred to the circuit court of Daviess County, in June, 1914, the prosecuting attorney of Livingston County filed in the circuit court of Daviess County an amended information charging the appellant with the same offense as in the original, but in two counts, one for the embezzlement of money and the other for the embezzlement of a check. On the day said amended information was filed, the appellant announcing ready for trial, a jury was sworn and impaneled and the trial proceeded, but before a verdict was rendered the court, on its own motion, stopped the proceedings and quashed the amended information and ordered that the appellant be held for trial on the original information. Thereafter, on December 10, 1914, appellant filed a plea in bar on the-ground that having been put upon his trial oh the amended information and a jury having been impaneled and sworn to try him, he had been put in jeopardy and hence should not again be required to answer for the same offense. This plea was overruled. Appellant then filed an application for a continuance on the ground of tbe absence from tbe State of a stenographer who bad formerly been in bis employ, alleging that said witness, if present would testify that Greger bad told appellant to use tbe money be bad obtained from Bartlett Bros, until tbe second loan was obtained and pay bim (Greger) interest on same. This motion was overruled, and appellant waived formal arraignment, entered a plea of not guilty and a jury was impaneled and sworn to try tbe cause. Tbe trial progressed and on December 12, 1914, tbe jury returned a verdict finding tbe appellant gnilty as stated, and from this judgment be appeals.

In tbe spring of 1913 Charles E. Greger owned a farm in Livingston County burdened with two deeds of trust, one for $3000 and tbe other for $1600. Both were held by Frank B. Caesar. Tbe notes secured by these deeds of trust becoming due, tbe owner desired their payment. Tbe appellant at tbe time was in' tbe real estate and loan business in Chillicothe, and Greger approached bim for tbe purpose of securing a loan to enable bim to take up these notes and release bis farm from tbe deeds of trust. Tbe first conversation in regard thereto between appellant and Greger was in tbe latter part of March, 1913, and as a result of same Greger filled out, at appellant’s direction, an application to Bartlett Bros, of St. Joseph for a loan of $3600. After some correspondence between Bartlett Bros, and tbe appellant, tbe former agreed to make tbe .loan to tbe amount of $3400 oñ tbe Greger land, and on April 14, 1913, a note and deed of trust were executed by Greger to Bartlett Bros, for that amount and same were delivered to appellant to be forwarded to Bartlett .Bros.; at tbe same time another note and deed of trust were executed for tbe sum of $1400, which sum of money was to be obtained from a source other than Bartlett Bros. When it bad been ascertained that tbe money could be obtained from Bartlett Bros., Greger made and delivered to the appellant, at the latter’s request and direction, the following paper: “Utica, Mo., April 1,1913. .Bartlett Bros. Land and Loan Company, St. Joseph, Mo. Gentlemen: Please pay to Charles E. McWilliams or order the proceeds of my loan of $3400-negotiated by you for me. I hereby appoint said Charles E. McWilliams my agent to settle with you in full for said loan. Charles E. Greger.”

On the completion of the abstract of title of the Greger land and its examination and approval by Bartlett Bros., on June 14, 1913, they forwarded to appellant their check, payable to him, for $3298, being the proceeds of the $3400' which they had agreed to loan Greger, less the commission. A few days prior to the forwarding of this check appellant had written Bartlett Bros, that he had completed the arrangements for the second loan, but it is further shown by the evidence that this had not been done, and that the second deed of trust was never recorded, nor was the note representing it ever negotiated. The check for $3298 sent by Bartlett Bros, to appellant was indorsed by a stenographer in his office and placed to his credit in the Peoples Savings Bank of Chillicothe. None of this money was ever paid to Greger, but all of it was cheeked out, either by the appellant or persons in bis office authorized to check on his account, and in November preceding the trial the entire amount had been thus withdrawn from the bank, leaving only a balance of ninety-four cents. Nor was any of the proceeds of this check ever paid to Caesar, the owner of the two deeds of trust. Appellant never at any time disclosed to Greger that he had received the $3298 or any other amount of money from Bartlett Bros, by reason of the execution of, the note for $3400 and deed of trust by Greger to said Bartlett Bros, to secure same. Upon the consummation of this loan by the delivery made by appellant to Bartlett Bros, of the note and deed of trust for $3400 they at once placed the deed of trust upon record. Greger made frequent visits to appellant’s office in Chillicothe after he had delivered the note and deed of trust to him, in an effort to ascertain whether he had received the money, but could not find him, although these visits were repeated at intervals from July, 1914, to the day of the trial, December 10, 1914. He says that during this time he was in California for his health. Appellant, on the witness stand, testified that a few days after the receipt of the money from Bartlett Bros, he told Greger the money had been received, but that he had not yet been able to negotiate the second loan for $1400. At that time appellant says Greger suggested that he would see the owner of the notes secured by deed of trust and endeavor to induce him to take the second loan. In the meantime appellant says he talked to Caesar and tried to get him to take the $3298 which had been received from Bartlett Bros, and apply it on the two notes aggregating $4600, but that Caesar had refused so to do. Appellant could not remember that-Greger had ever given him -a note in payment for his services in securing the loan. Shown a letter that he had addressed to Bartlett Bros, on June 13, 1914, in which he said, “We have been ready for a long time for our part of the deal and have the papers for the second loan on record and are awaiting your money, ’ ’ he admitted that the statement therein made was not true, but said when he wrote the letter he had the promise of the money to cover the second loan for $1400, and had given directions to some one in his office to have the deed of trust recorded and thought it had been done. He further admitted that the check received from Bartlett Bros, in the sum of $3298 had been deposited to his credit in the Peoples Savings Bank in Chillicothe and had been checked out, either by himself or some one in his office. When asked if it had been spent for his private benefit he answered evasively but admitted that he had never paid the money to Greger, his excuse being that no demand had ever been made for it, that he had been gone several months and had not seen Greger during that time, that he had never paid the money to Bartlett Bros., and had never given Greger a slip of paper or anything else showing he had used it, and that this was his customary way of transacting business of this character. Caesar, who owned the first and second deeds of trust, denied that appellant had ever offered to pay him the $3298 which had 'been received by^ appellant from Bartlett Bros, or any other sum, or that appellant had offered to give him any additional security as an inducement for him to take a second mortgage.

The charging part of the original information is as follows:

“That Charles E. McWilliams on or about the 14th day of June, A. D. 1913, at said county of Livingston and State of Missouri, being then and there the agent of a certain private person, to-wit — of one Charles E. Greger, and the said Charles E. McWilliams, being then and there, not a person under the age of sixteen years, did then and there by virtue of his said employment as agent of the said Charles E. Greger, have, receive and take into his possession and under his care certain money to a large amount, to-wit, to the amount of thirty-four hundred dollars, lawful money of the United States and of the value of thirty-four hundred dollars, of the property and moneys belonging to the said Charles E. Greger,’ and the said Charles E. McWilliams the same money then and there feloniously did embezzle and fraudulently convert to his own use, without the assent of his employer, the said Charles E. Greger, the owner of said money; and the said Charles E. McWilliams, the said money, in manner and form áforesaid, feloniously did steal, take and carry away; against the peace and dignity of the State.”

I. The information charges a statutory embezzlement under section 4550, Revised Statutes 1909. Its sufficiency is assailed generally. The well-established rule in regard to charging an offense 'based on a statute is that where the statute sets out' the Speciflc facts constituting the crime, an information or indictment based thereon which is definitely descriptive of the offense, as defined by the statute, will be held sufficient. [State v. Perrigin, 258 Mo. l. c. 236.] The necessary constituent elements of the offense are set forth in the statute in the instant case and hence the information which embodies its language is not subject to valid objection. [State v. Moreaux, 254 Mo. l. c. 405; State v. Blakemore, 226 Mo. l. c. 574.]

In addition to the general objection urged by appellant to the information, it is contended that it does not allege a criminal intent.

The statute upon which this charge is based creates two offenses: one consisting of the doing of the act itself, and the other of doing certain things in regard to the subject-matter with the intent’to do the prohibited act. The information here is based upon the first offense denounced by the statute and charges the commission of the act iiself and not the doing of something else with the intent to commit the act.

Embezzlement is the fraudulent conversion of another’s property by one to whom it.has been intrusted or into whose hands it has lawfully come; and when it has been embezzled or converted, within the meaning of the statute, it is not an improper inference that the act was intended by the perpetrator of same. While it is true that no one can be convicted of a felony in the absence of a criminal intent, such an intent in a case of embezzlement may be inferred from a felonious or fraudulent conversion and need not be alleged in the information or indictment. This ruling as to the sufficiency of a charge under the first class of offenses defined hy the statute received the careful consideration of this court in State v. Lentz, 184 Mo. 223, in which it was held that it was not necessary to allege the intent with which the act charged was committed. This ruling was approved in State v. Larew, 191 Mo. l. c. 199.

II. Appellant interposes • the plea of former jeopardy. This is not based upon the proceeding against him on the amended information, which he admits to have been a mere nullity, no other alternative remaining under our ruling in State v. Bartlett, Mo. l. c. 672. But he contends that while put upon his trial in the first instance, on the amended information he was, in law, by reason of its invalidity, put in jeopardy under the original information, it being the only valid charge against him.

The fallacy of this contention becomes apparent upon an analysis of same. It bases the plea of jeopardy upon an assumption and not upon a fact. A defendant cannot thus be put in peril within the meaning of the Constitution. [Art. 2, sec. 23, Constitution.] It will not suffice to assume that because appellant could not be injured by the invalid proceeding that he ■must perforce have cause of complaint because there was pending against him in the same case a valid charge which he was not then required to answer. If the appellant was only required at the time the amended information was preferred against him to answer the charge therein- — -and no further demand could the State then make — under what rule of reason or law can it be said that he was answerable under the original information? It is true that it formed the foundation for the prosecution and gave the circuit court of Daviess County derivative jurisdiction of the case upon the perfecting of the change of venue, but this did not give it power while simply lying in the files and undisposed of to operate as a charge against appellant because of the invalidity of the proceeding he was then being required to answer.

If the fallacy of appellant’s contention be not sufficiently shown by the foregoing concrete reasons, let us see what light is thrown on the question by the authorities.

A rule well established here and elsewhere requires that before a plea of former jeopardy can be sustained these facts must be made to appear; that a valid charge either by indictment or information has theretofore been preferred against the accused in a court of competent jurisdiction charging him with the same offense of which he is on trial, and that in the former proceeding a legal jury was impaneled and sworn. [State v. Buente, 256 Mo. l. c. 239, and cases; State v. Keating, 223 Mo. l. c. 94; 12 Cyc. 261.] There are exceptions to this rule well stated in the Buente case, supra, p. 241, but not necessary to be considered here. Appellant was at no time before his arraignment and the trial which resulted in his conviction, required to answer, on a trial, a valid charge preferred against him. This is one of the essentials necessary under the rule stated. The amended information, as he admits, lacked the requisite of validity, for the reasons set forth in State v. Bartlett, supra. He was not arraigned upon or required to answer the original information when the proceeding of which he complains was pending against him, nor was a jury impaneled and sworn to try him on this charge. To hold, therefore, that it operated to his injury in the absence of these essentials would be in violation of precedent and contrary to reason.

No provision of our Bill of Rights was violated in the trial of appellant, nor was he entitled to be heard on the plea that the proceeding against him contravened the Fifth Amendment to the national Constitution; this, as has been repeatedly held, is applicable only to crimes against and trials under Federal laws. [Capital City Dairy Company v. Ohio, 183 U. S. 238; Thorington v. Montgomery, 147 U. S. 490; State v. Buente, supra; 12 Cyc. 259.] There is no merit in the plea in bar.

III. Appellant complains of the action of the trial court in refusing to grant him a continuance. The application was properly refused. It is in consistent, if not contradictory, m alleging that the appellant had conferred with the witness by correspondence, knew what her testimony would be and sent her money to enable her to attend the trial, while at the same time alleging that he had only learned what her testimony would be during the last few days preceding the making of the application. Further than this, the allegation as to appellant’s recent knowledge of the witness’s testimony does not savor of sincerity. If true it is contrary to all human experience. He was charged with a felony. She was his employee when he received the check from Bartlett Bros., the cash proceeds of which he subsequently embezzled. She, as his evidently trusted employee, deposited this check to his credit in the bank. On account of her relation to his business requiring her daily attention thereto and his alleged frequent conversations with Greger, he must have known of her presence when he had these conversations concerning which it is stated she will testify. This testimony if true was vital to his defense and she was his most important witness. Yet, according to his statement, he did not know what she would testify until a few days prior to the making of the application. In addition, therefore, to the application in this respect lacking the import of truth, it does not show such diligence as must reasonably be expected will be exercised by a man of ordinary intelligence under like circumstances. [State v. Pagels, 92 Mo. l. c. 308.]

No intendments are to be taken in favor of applications of tbis character (State v. Good, 132 Mo. l. c. 129); from its express allegations the conclusion is reasonable that appellant knew not only what the testimony of this witness would be 'but her whereabouts in ample time between the date of the filing of the information and the trial to have enabled him to take her deposition.

If the allegation as to appellant’s then recent knowledge of the witness’s testimony bore the impress of truth, which it does not, then the trial court would have been justified in granting the application, in view of the statement that he had sent her money to defray her traveling expenses to the place of trial and that she had agreed to attend; but under the facts as we view them a proper exercise of diligence required him to take her deposition. This being true, the overruling of the application, which was addressed to the sound discretion of the trial court, was not unwisely or oppressively exercised and we refuse to interfere with same. [State v. Cain, 247 Mo. l. c. 705; State v. Crane, 202 Mo. l. c. 74; State v. Clark, 170 Mo. 207.]

IV. The uncontroverted facts show that appellant was the agent of the borrower (Greger) in securing this loan. Greger testified that on the day he called at appellant’s office to employ him to secure the loan he gave appellant a note, payable to the latter, for $127.50 for his services in that behalf. Further than this, the order given by Greger to appellant on Bartlett Bros, (set forth in full in the statement of facts), which was to fie delivered to the latter in the event the loan was secured, 'expressly declared appellant to be Greger’s agent. Appellant does not deny either the execution of this note or the delivery to him of the order, but contents himself with a resort to a lack of memory in regard to the first and silence as to the second. Forgetfulness and evasion have never been regarded as indicative of truth.

If it be conceded that appellant was the agent of the loan company at the beginning of the transaction this doés not militate against the conclusion, supported by the facts stated, that he was the agent of the borrower to negotiate the. loan and apply the proceeds thereof as had been directed; but the credibility of appellant ’s testimony as to his agency for the loan company, at any time, is shaken by the testimony of Peterson, a representative of the company, that up to the time the appellant made the application for Greger he was a stranger to the company and that even the formal blank used in this application was not procured by the appellant from the company’s office. Subsequently this witness stated that appellant during the year 1913 negotiated four or five loans through the company, but this does not tend to show appellant’s agency in the matter at bar or in the cases of which the witness testified.

Circumstances naturally arising out of a transaction are sometimes as strong in probative force as sworn testimony. This case affords an illustration oí this fact. Appellant was not compensated for his services in securin'g this loan by the company, as he would naturally have been had he been its agent, but by Greger. When the note and deed of trust had been executed and delivered to the loan company it forwarded to appellant for Greger, not $3400, but a check for $3298, or $102 less than the face of the note, which latter sum it deducted and retained for its services in making the loan. While it is stated in one of the letters from the company to appellant that "it will, when the loan has been completed, pay him his part of the commission,” so far as the evidence discloses none-of the sum thus deducted or retained was ever claimed by or paid to him, nor did the company ever compensate him in any other manner. The reasonable conclusion, from this fact is that, he was not employed by the company to negotiate the loan, but by Greger to obtain it, and by the latter he had been fully paid. It is clear, however, whether he was paid by the company or not, that in. all that is necessary to constitute the relation, he was the agent of'the borrower.

The cases cited in respondent’s brief under this head, by reason of the similarity of their facts to those in the instant case, sustain the conclusion we have reached in regard to appellant’s agency.

V. Appellant contends that the title to. the check forwarded by the Bartlett Bros. Loan Company to appellant, the cash proceeds of which were to be paid to Greger or applied in part-satisfaction of certain prior liens on his land, never left the company and at all times belonged to it. This contention is mystified by many words, principally copied from the formal application made by appellant to the company for Greger and the correspondence between* appellant and the company prior to the making of the loan. The relevant facts from which ownership must be determined are that the company contracted to loan $3400 to Greger to be evidenced by his note, which was to be secured by a deed of trust on his land, and upon the receipt of such note and deed of trust caused the latter to be recorded and forwarded a check payable to appellant for the amount of the loan less the company’s commission. Upon the acceptance by the company of the note and the recording of the deed of trust, the contract for the loan was consummated, whereby the obligation of the company to pay the amount called for in the note became fixed. Upon the transmittal, therefore, of the check to appellant by the company it parted with the title to same and the nominal ownership therein passed to the appellant who became burdened, upon the receipt of same, with the obligation to either indorse it to Greger, convert it into cash and pay the proceeds to him, or apply it to the discharge of the prior lien on Greger’s land. He did neither, but indorsed same to a bank and had the amount called for therein placed tó his credit. This created a technical appropriation, as the money realized from the check belonged to Greger, but until appellant indicated a purpose to do with this money as the thief does with- the property of another in a case of larceny, such a felonious conversion did not occur as to create the crime of embezzlement. But when it did occur the crime was complete. Nor is it material as to the manner in which the money was drawn out if converted to appellant’s own use. [State v. Woodward, 171 Mo. 593; State v. Moyer, 58 W. Va. 146, 6 Am. & Eng. Ann. Cas. 344.]

VI. Appellant’s felonious intent is to be measured by his acts. According to the testimony, to which the jury gave credence, the sufficiency of which is ample to sustain the verdict, it is shown that appellant, when the loan had been secured, evaded Greger. He concealed the fact from him that the loan had been consummated and that he had received the check. He placed the same to his own credit in a bank and admits that he drew the money out for his own use and has not accounted for same.

These facts sufficiently show a felonious intent on the part of the appellant, and his relation to Greger as an agent having been established, his act is clearly within the purview of that general rule that if one who has the possession of the property of another, instead of delivering it to the owner as his duty requires, neglects or refuses to account for it or otherwise diverts it ,so as to exercise dominion over it to the' exclusion of the owner and to make it his own, he is guilty of embezzlement. [State v. Lentz, 184 Mo. l. c. 239.]

VII. Appellant complains because tbe trial court permitted tbe State to show by tbe witness Peterson that tbe appellant bad neither used tbe money received from Bartlett Bros, in paying off tbe prior liens nor bad be returned tbe money to tbe loan company. Tbe question at issue was wbetber or not tbe money so received by bim bad been applied as directed by Greger, and it was therefore pertinent for tbe State to show that tbe appellant bad violated bis directions as to tbe manner in which tbe loan should be applied.

Further objection is made that tbe court erred in permitting tbe State to show that tbe check received by appellant from tbe loan company bad been indorsed and deposited to bis credit in a bank and bad later been checked out by bim. Tbe check was made payable to appellant, and necessarily under tbe authority given him by Greger be could not commit the crime of embezzlement until after it bad been indorsed and converted into money. If in tbe latter form be used it as directed, be was guiltless; on tbe other band if be used tbe money for purposes other than to pay it to Greger or to discharge tbe prior liens, he was guilty as charged. It is.manifest, therefore, that tbe court’s ruling in this respect was not erroneous. Moreover, appellant admitted on tbe witness stand that tbe check bad been received and deposited and tbe money drawn out of tbe bank by himself or others authorized to do so and that be bad used tbe same for personal purposes. Therefore, wbetber tbe action of tbe trial court in permitting a witness to state tbe condition of tbe bank was erroneous is immaterial, as tbe evidence given by such witness was in accord with that given by tbe appellant himself. Harmless error will not work a reversal.

Appellant also urged that the court erred in refusing to permit the witness Peterson to state the number of applications appellant had submitted to the loan company during the year 1913. This witness did state that appellant had forwarded to his company possibly half a dozen applications for loans during that time. Presumably, from the witness’s former testimony, these were made subsequent to procuring the loan for G-reger. But even if the court had refused to permit the witness to answer the question it would not have been error. The matter at issue was whether the appellant had embezzled the money represented by the check which had been forwarded to him, and his relationship to other borrowers and the loan company prior or subsequent to this transaction was not material. The evidence shows that he was authorized to receive the proceeds of this loan and was made the agent of the borrower in this particular case. Therefore, whatever relationship hé may have sustained to the loan company in previous or subsequent like transactions could have no bearing upon the issue to be determined by the jury in the instant case.-

VIII. The instructions given by the court advised the jury as to the elements constituting the offense charged and the punishment prescribed therefor; that the charge is sustained if it was shown that the money was embezzled in one sum or in less amounts at different times; that want of assent to the appropriation of the money by the appellant may be shown either by direct and positive evidence or from all the facts and circumstances in the case; what facts must appear from the evidence to constitute the appellant the agent of the prosecuting witness; that the crime may be established either by direct c: circumstantial evidence; that the criminal intent to deprive the owner of his property may be inferred when conversion is established. Other formal instructions were given as follows: as to the presumption of innocence and reasonable doubt; the weight to be attached to appellant’s testimony; that the jury is the judge of the credibility of witnesses; that if the prosecuting witness gave his consent for appellant to make personal use of the money in question a verdict of acquittal must be returned; that if it appears from the evidence that the appellant was the agent of the loan company and received the money conditionally, he must be acquitted; and that the mere failure to pay over the money to his principal does not constitute the crime charged. Theée instructions fully advised the jury as to all the principles of law arising under the evidence in this case and are in substantial compliance with similar ones which have heretofore met with the approval of this court. See cases cited in respondent’s brief approving instructions similar in all their material particulars to those given in this case. These instructions rendered the giving of those asked by appellant and refused unnecessary.

There was ample evidence to sustain the verdict. Appellant was awarded a fair trial and has no just cause of complaint. We find no error authorizing a reversal and the judgment of the trial court is affirmed.

All concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    HERMAN SCHROEDER et al. v. GEORGE L. EDWARDS et al., Appellants. HERMAN SCHROEDER et al; JOHN D. GERLACH, Administrator of Estate of HARVEY NEVILLE, Appellant, v. GEORGE L. EDWARDS et al.
    Division Two,
    March 31, 1916.
    1. SUFFICIENCY OF EVIDENCE: Judgment of Foreign Court: Raised By Motion for New Trial. An assignment in the motion for a new trial that “the verdict and judgment is unsupported by any substantial evidence” raises the question of the sufficiency of the evidence, and that proposition necessarily embraces a contention that the judgments against a corporation rendered by a court of another State, which are made the basis of plaintiff's suit against its stockholders for the amount of the unpaid stock issued to them, and introduced in evidence, were insufficient in law to support a finding for plaintiff.
    2. -: -: Presumption: Cognovit. Where the plaintiffs cause of action is bottomed on the judgment of a circuit court' of another State, proof of a judgment entered by the clerk of that court in vacation, is not sufficient, unless there are also introduced in evidence the statutes of that State establishing the jurisdiction and the authority to do that which was done by the clerk in vacation. In such case the presumption that the judgment so entered was regular and valid cannot be indulged, because such a judgment, being unknown to the common law, must depend for its validity upon the statutes authorizing it.
    3. STATUTES OF ANOTHER STATE: Proof. In Missouri- the statutory law of another State must be proven the same as any other-fact in the case.
    4. CORPORATION: Payment for Stock: Services Rendered By Financial Agent. Where nothing was paid in money by its stockholders at the time the Illinois corporation was organized, but the plan of its incorporators was to issue the company’s bond* to the full amount of its capitalization and use the money derived from their sale in the construction of the electric light plant, it cannot be held that one of them, who, as the company’s financial agent, indorsed its notes upon which money was obtained for the first work of construction, which notes when the bonds were sold were paid out of the proceeds, thereby, as against general creditors of the company, paid for the stock issued to him in services rendered the company.
    5. MOTION TO STRIKE OUT: Waiver. Any error of the trial court in overruling defendant’s motion to strike the amended petition from the files, on the ground that it constituted a departure, is waived by filing an answer to the merits and going to trial.
    6. APPEAL: Insufficient Assignment: Striking Out Answer. An assignment under “Points" that “the portions of defendants’ answer stricken out by the court on the motion of the plaintiffs were material to the defense of these defendants, and error was, therefore, committed by the court in such action,” with nothing more except the citation of authorities, does, not comply with Rule K, and does not designate any facts from which the court may comprehend what the point is.
    7. CORPORATION: Unpaid Stock: Creditor Participating in VVrong. A stockholder who participated in the transaction whereby the services of a financial agent were received and accepted by the corporation in full payment of stock issued to such agent, cannot be heard to say that the stock is not full paid, even though he has loaned money to the company, and cannot hold said agent as a stockholder as for unpaid subscriptions on his stock, to satisfy a judgment against the company in the amount of the money loaned. [Following Meyer v. Min. & Mill. Co., 192 Mo. 162, and distinguishing Gillett v. Chicago Title & Trust Co., 230 111. 373.]
    8. REMANDING CAUSE: Confining Issue. Where all issues in an equity case except one have on appeal been settled, the court, instead of remanding the cause generally, may remand it, with directions that upon a retrial the case be confined to the one issue upon which the evidence at the first trial was insufficient to support a decree for plaintiff.
    Appeal from St. Louis City Circuit Court. — Hon. George C. Hitchcock, Judge.
    Reversed and remanded (with directions).

      Eliot, Chaplin, Blayney <& Bedal for plaintiffs.
    (1) A shareholder’s liability to creditors of a corporation is determined by the statutes of the State in which the corporation was incorporated, and the construction of its statutes by the court of last resort of that State is followed in all jurisdictions. Meyer v. Mining Co., 192 Mo. 162; Hodgson v. Cheever, 8 Mo. App. 318; Bagley v. Tyler, 43 Mo. App. 195; Guerney v. Moore, 131 Mo. 650; Leucke v. Tredway, 45 Mo. App. 507; Kimball v. Davis, 52 Mo. App. 194; McClure v. Iron Co., 90 Mo. App. 567; Pfaff v. Gruen, 92 Mo. App. 560; 4 Thompson on Corporations (2 Ed.), see. 5050, p. 1440; 10 Cyc. 670. This liability will be enforced in all other jurisdictions unless the statute creating the right gives an exclusive remedy for its enforcement. Hodgson v. Cheever, 8 Mo. App. 318; Bagley v. Tyler, 43 Mo. App. 195; Guerney v. Moore, 131 Mo. 650; Leucke v. Tredway, 45 Mo. App. 507;- Schickle v. Watts, 94 Mo. 411; Van Cleve v. Berkey, 143 Mo. 109; Meyer v. Milling Co., 192 Mo. 162; Euston v. Edgar, 207 Mo. 287. (2) The services of Mr. Edwards in raising $19,500 for the company under the circumstances disclosed in evidence were not such services as could be given or received in payment of capital stock. 1 Cook on Corporations (7 Ed.), pars. 17 and 18; Thompson on Corporations (1 Ed.), sec. 1605; 4 Thompson on Corporations (2 Ed.), secs. 3962-.3964; Clark and Marshall on Corporations, sec. 384; .'Sand Co. v. Crematory Co., 205 111. 42; Liebke v. .Knapp, 79 Mo. 22; 10 Cyc. 472. (3) Under the law of Illinois, shares of stock must be paid for in money or money’s worth. Where an agreement is made to that ■effect, shares may be paid for in property, but to constitute payment the property must have been bona fide sold to and received by the corporation at its market or cash value. Coleman v. Howe, 154 111. 458; Kan Cleve v. Berkey, 143 Mo. 109; Sprague v. Bank, 172 111. 149; Sand Co. v. Crematory Co., 205 111. 42; Gillett v. Title & Trust Co., 230 111. 3-73. (4) In the absence of an express agreement on the part of a corporation, an officer is not entitled to payment for services rendered as such officer. Gridley v. Railroad, 71 111. 200; Fritze v. Bldg. & Loan Soc., 186 111. 183; Macaroni Co. v. Boggiana, 202 111. 312. (5) Payment for the capital stock of a corporation in property must be made under an agreement with the corporation. An agreement between the promoters to this effect is not sufficient. 1 Cook on Corporations (7 Ed.), sec. 18; Jewell v. Paper Co., 101 HI. 57. (6) The appellants having failed to make the point below that respondents must introduce the Illinois statutes showing the authority of the .clerk to enter a judgment in vacation cannot make the point on appeal.- The judgments cannot be collaterally attacked for defects in procedure; being judgments of a court of general jurisdiction of a sister state authenticated under the act of Congress they are entitled to full faith and , credit, and it will be presumed that the court had jurisdiction unless it is affirmatively shown to the contrary. 2 Black on Judgments (2 Ed.), secs. 889 and 896; Dodge v. Coffin, 15 Kan. 277; 23 Cyc. 1090, 1095; Lackland v. Pritchett, 12 Mo. 485; Assurance Co. v. Walden, 238 Mo. 49; Plurd’s R. S. 111., ch. 110, sec. 88; Conkling v. Riclgely, 112 111. 36; (7) The law of Illinois, as determined by its court of last resort, allows a corporate creditor to recover against shareholders for the unpaid portion of their stock even though the creditor at the time of extending- credit knew the shares were unpaid. Grillett v. Title & Trust Co., 230 111. 373; Sprague v. Bank, 172 111. 149; 4 Thompson on Corporations (2 Ed.), sec. 5028, p. 1423.

      Jeffries S Corum for defendants.
    (1) The consideration for shares of stock of a corporation may be paid in services rendered or to be rendered. Cook on Corporations (7 Ed.), sec. 20; Shannon v. Stevenson, 173 Pa. St. 419; Beach v. Smith, 30 N. Y. 116; Liebke v. Knapp, 79 Mo. 22; Vogeler v'. Punch, 205 Mo. 574. (2) A loan of credit is such á service as a corporation may accept in payment for its stock. Saunders v. Marble Co., 25 Wash. 475; Cook on Corporations (7 Ed.), sec. 20; Bank v. Slater, 117 Fed. 1002. (3) In determining the question as to whether or not the property or services are of adequate value in the payment for shares of stock, the courts of Illinois and elsewhere have adopted what is-known as the “good faith” rule, which provides that in the absence of express fraud the adequacy of the consideration cannot be questioned by creditors of the corporation. Kunz v. Valve Co., 29 Ohio Cir. Ct. 519; Coleman v. Howe, 154 111. 458; Car Seat Co. v. Rankin, 45 111. App. 226; Bank v. Nortkrup, 82 Kan. 638; Far-well v. Tel. Co., 161 111. 52; McBride v. Farrington, 131 Fed. 797; Coit v. Amalgamating Co., 119 U. S. 343; Fogg v. Blair, 139 U. S. 118; Cook on Corporations (7 Ed.), sec. 46; Trust Co. v. McMillan, 188 Mo. 547; Ball v. Henderson, 134 Ala. 455, 63 L. R. A. 673; McClure v. Iron Co., 90 Mo. App. 567; Carp v. Chipley, 73 Mo. App. 22; Yogeler v. Punch, 205 Mo. 558; Peck v. Coal Co., 11 111. App. 88; Chemical Works v. Class Co., 34 111. App. 404; Young v. Iron Co., 65 Mich. 411; Netherly v. Baker, 35 N. J. Eq. 301; Beckley v. Schlog, 46 N. J. Eq. 533. (4) No statute of the State of Illinois being introduced in evidence prohibiting the payment of stock in services, the common-law rule in regard thereto will be applied. Horton v. Lbr. Co., 147 Ky. 227; McClure v. Iron Co., 90 Mo. App. 567; 10 Cyc. 649; Coffin v. Ransdell, 110 Ind. 424. (5) Where a judgment of confession in vacation by the clerk is authorized by a statute of a foreign State, such statute must be introduced in order to prove a valid judgment. Otherwise the common-law rule that a judgment is a judicial' act and must be entered in open court applies. Roundy v. Hunt, 24 111. 598; Trimble v. Stamper, 179 Mo. App. 300; Secs. 6281, 6282, R. S. 1909. (6) Where a creditor participated in the scheme whereby the capital stock of a corporation has not been fully paid and therefore knew at the time he extended credit to it that it was not fully paid, he cannot thereafter enforce his claim by suing the stockholders for the unpaid portion of their stock. This is conceded by appellant to be the well-settled law of Missouri. He asks, this court to apply to this case the law of Illinois as declared by the courts of that State, wherein he claims all question of knowledge of, or participation in, the scheme by which the stock is issued for less than’its expressed par value, is eliminated from the right of a creditor of the corporation to recover from the stockholders. If this be the set-tied law of Illinois as declared by the courts of that State, and is relied upon by appellants to control this case, it should have been pleaded and proved in the lower court. Morton v. Supreme Council, 100 Mo. App. 88; Garrett v. Conklin, 52 Mo. App. 654; Ginnochio v. Railroad, 155 Mo. App. 163; Thompson v. Railroad, 243 Mo. 336; Tennent v. Ins. Co., 133 Mo. App. 345. (7) The common law of Illinois applicable to this case is the same as the general common-law rule. When the evidence shows that the capital stock of a corporation was to be paid for in property or services under an agreement between the corporation and the stockholders, and said agreement to render services in payment for the stock has been made and carried out in good faith, in the absence of fraud, creditors, are foreclosed from a recovery against such stockholders on the ground that the stock has not been paid for. McClure v. Iron Co., 90 Mo. App. 460; Carp v. Chipley, 73 Mo. App. 22; Vogeler v. Punch, 205 Mo. 558; Kunz v. Valve Co., 29 Ohio Cir. Ct. 519; Coleman v. Home, 154 111. 458; Car Seat Co. v. Rankin, 45 111. App. 226; McBride v. Farrington, 131 Fed. 797; Meyer v. Milling Co., 192 Mo. 162; Berry v. Rood, 168 Mo. 333; Woolfolk v. January, 131 Mo. 620; Trust Co. v. McMillan, 188 Mo. 1; Shield v. Hobart, 172 Mo. 491; Biggs v. Westen, 248 Mo. 333; Bonet Const. Co. v. Westen & Kline, 153 Mo. App. 185; Millinery Co. v. Trust Co., 251 Mo. 553.
   WILLIAMS, C.

This is a proceeding in equity by judgment claimants of the Chester Light, Water & lee Company, a corporation organized under the laws of the State' of Illinois, to recover from the defendants, residents of St. Louis, Missouri, as stockholders of said corporation, an amount alleged to be unpaid on the stock held by them in said corporation, and to have said'amount, due on said stock, applied to the payment of the plaintiffs’ respective claims. Trial was had, in the circuit court of the city of St. Louis, resulting in a judgment and decree in favor of all of the plaintiffs, except plaintiff Neville, and judgment was rendered against defendant George L. Edwards for the sum of $10,226.26 and against defendant' Grant for the sum of $343.16, making a total judgment of $10,569.42, which was the total amount of judgments and claims held by the respective plaintiffs, less the claim of plaintiff Neville. Cross appeals were duly taken to this court, one appeal by plaintiff Neville and another appeal by the defendants Edwards and Grant.

The third amended petition, upon which the case was tried, alleged the incorporation of the Chester Light, "Water & Ice Company, under the laws of the State of Illinois, with an authorized capital of $35,000, divided into three hundred and fifty shares of the par value of $100 each, and that defendant George L. Edwards and one J. D. Gerlach were the original incorporators and promoters of said corporation and that all but five shares of said capital stock were originally subscribed for by A. D. Grant as a “straw man” and that said Grant paid no consideration to said corporation for said stock.

That immediately after said corporation was organized said Grant transferred 340 shares of said stock to defendant Edwards; that said Edwards, after-wards, transferred all but 147 shares of said stock to other parties, among them J. D. Gerlach, 146 shares; that an understanding existed between Edward's and 'Gerlach whereby each was to receive approximately one-half of the capital stock of said corporation; that said defendant Edwards became the owner of and holder of one hundred and forty-eight shares of stock in said corporation, and now owns and holds the same on the books of the corporation and that no consideration has ever been paid to the corporation, nor has the corporation ever received any value for the .one hundred and forty-eight shares of stock so held by defendant Edwards.

The defendant Edwards, in 1901, indorsed and delivered to said J. D. Gerlach a certificate for' said one hundred and forty-eight shares of stock held by said Edwards, but that said transfer has never been recorded upon the books of the corporation, and that, at the time of the transfer, the corporation was insolvent and said Gerlach was insolvent and said transfer was made by said Edwards to avoid liability on said stock ; that under the common law of Illinois, the transferrer of stock remains liable thereon until the transfer is recorded on the books of the corporation and that such liability has not been removed by statute in said State; that there is now due and unpaid on said 148 shares of stock held by said Edwards the sum'of $14,800, for which said defendant is liable to these plaintiffs; that said defendant Grant owns five shares of the capital stock of said company, upon which there has been nothing paid, and that there is due on such shares the sum of five hundred dollars; that said defendants Grant and Edwards are the only solvent stockholders, holding unpaid stock, within the jurisdiction of said circuit court.

The petition further alleges that section 8, chapter 32, of the Revised Statutes of Illinois, provides as follows : '

“Every assignment or transfer of stocks on which there remains any portion unpaid shall be recorded in the office of the recorder of deeds of the county within which the principal office is located, and each stockholder shall be liable'for the debts of the corporation to the extent of the amount that may be unpaid upon the stock held by him to be collected in the manner herein provided. No assignor of stock shall be released from any such indebtedness by reason of any •assignment of his stock, but shall remain liable therefor jointly with the assignee until said stock be fully paid. Whenever any action is brought to recover any indebtedness against the corporation, it shall be competent to proceed against any one or more stockholders at the same time to the extent of the balance unpaid by such stockholders upon the stock owned by them respectively, whether called in or not, as in cases of garnishment. Every assignee or transferee of stock shall be liable to the company for the amount unpaid thereon, to the extent and in the same manner as if he had been the original subscriber.”

The petition further alleges that plaintiff Herman Schroeder, on December 14, 1904, recovered judgment in the circuit court of Bandolph County, in the State of Illinois, against said Chester Light, Water & Ice Company, in the sum of $56.70, together with costs amounting to $4.85. That execution was duly issued upon said judgment, addressed to the sheriff of said Bandolph County, and was, by said sheriff, duly returned nulla bona. That said judgment still remains due and unpaid, and under the laws of the State of Illinois bears interest at the rate of five per cent per annum.

The judgments of the other respective plaintiffs are set forth in the same manner as the judgment of plaintiff Schroeder.

The prayer of the petition asks that the court enter a decree against said defendants, in proportion to the amount of their respective stock liability, an amount sufficient to satisfy the total claims and judgments of the respective plaintiffs.

Defendants filed a motion to strike out the third amended petition on the ground that it was a departure from the original cause of action pleaded. This motion was overruled and defendant saved an exception.

Defendants’ answer to said third amended petition alleged:

1st. That the court had no jurisdiction of the subject-matter.

2nd. That the plaintiffs, or some of them, have no legal capacity to sue..

3rd. They admit that defendant Edwards, in 1901,' sold and transferred all of his stock in said company to said J. D. Gerlach for a consideration of five dollars per share and executed to said Gerlach a power of attorney to cause said shares of stock to be transferred on the books of the company to said Gerlach, and that, by reason thereof, the defendant Edwards ceased to be a shareholder in the company, and that if the company is indebted to the plaintiffs, as alleged in their amended petition, said indebtedness accrued long subsequent to the time when defendant Edwards ceased to •be a shareholder, as aforesaid.

4th. That when the company was organized, it was mutually agreed between the incorporators thereof and all the subscribers to the capital stock that its capital stock should be paid, wholly, in services, contract and franchise rights to be rendered to and transferred to the company, or for its use and benefit, either before or after the incorporation of the company, and that all of the services and contract and franchise rights agreed to be rendered to and transferred to the company, in payment of the capital stock of the company, were rendered to and transferred to the company, as agreed, and its capital stock fully paid as agreed, all of which was known to the plaintiffs and each of them, and particularly to the plaintiff Harvey Neville, who was an incorporator of the company, shareholder, director and treasurer thereof, from its organization to its final dissolution, and that neither of the plaintiffs gave or extended credit to the company on the faith that its capital stock had been paid in money or its equivalent in property value, but well knew that the capital stock of the company was not intended to be paid in money or in its equivalent in property.

5th. That the liability of shareholders in a corporation, organized under the laws of Illinois, to said corporation or its creditors, is a contractual liability, and that, under and by virtue of the laws of the State ■of Illinois, which form a part of the said contract, the shareholders of a corporation, organized under the laws of said State, can only be sued upon their stockholders ’ liability in the courts of that State, and such liability could not be enforced by suit or otherwise except by such suit or proceeding prescribed for that purpose by the laws of the State of Illinois, and in the courts of said State. That under and by virtue of section 8 and section 25, chapter 32, of the Revised Statutes of Illinois, it is provided as follows:

(Section 8 is the same section as is copied in plaintiffs’ petition.)

‘ ‘ Section 25. If any corporation or its authorized agents shall do, or refrain from doing, any act which shall subject it to a forfeiture of its charter or corporate powers, or shall allow any execution or decree of any court of record, for a payment of money, after demand made by the officer, to be returned ‘No property found,’ or to remain unsatisfied for not'less than ten days after such demand, or shall dissolve or cease doing business, leaving debts unpaid, suits in equity may be brought against all persons who were stockholders at the time, or liable in any way, for the debts of the corporation, by joining the corporation in such suit; and each stockholder may be required to pay his pro rata share of such debts or liabilities to the extent of the unpaid portion of his stock, after exhausting the assets of such corporation. And if any stockholder should not have property enough to satisfy his portion of such debts or liabilities, then the amount shall be divided equally among all the remaining solvent stockholders. And courts of' equity shall have full power, on good cause shown, to dissolve or close up the business of any corporation, to appoint a receiver therefor who shall have authority, by the name of the receiver of such corporation (giving the name), to sue in all courts and do all things necessary to closing up its affairs, as commanded by the decree of such court. Said receiver shall be, in all cases, a resident of the State of Illinois, and shall be required to enter into bonds, payable to the People of the State of Illinois, for the use of the parties interested, in such penalty and with such securities as the court may, in the decree or order, appointing the same, require. In all cases of suits for or against such receiver, or the corporation of which he may be receiver, writs may issue in favor of such receiver or corporation, or against him or it, from the county where the cause of action accrued to the sheriff of any county in this State for service.”

That the plaintiffs have not commenced any suit as provided by.the laws of the State of Illinois to determine the liabilities and assets of the company and have not applied to the payment of the creditors of the company all the assets of the company and have not determined, in such a suit, the pro rata liability of all the shareholders of the company and, by reason thereof, are not entitled to maintain this suit.

6th. That on the-day of-, in a certain cause, entitled - -v. The Chester Light, Water and Ice Company, pending in the United States Circuit Court for the— District of Illinois, -was appointed receiver to take charge of and administer the property and effects of the company, and he, if any one, is the proper party to collect any dues or liabilities which may be owing to the company or its creditors from the shareholders or others.

7th. That under the laws of the State of Illinois a shareholder is not liable to the creditors of a corporation upon their unpaid stock, unless the overvaluation of the property turned in for said stock was fraudulently and knowingly made, with the intent of evading the statutes of Illinois.

8th. That plaintiffs ’ claims are barred by the Statutes of Limitation of the State of Illinois.

9th. A general denial.

Upon plaintiffs’ motion, the court struck out of defendants ’ said answer the following portions thereof:

1st. The allegation that plaintiffs did not have legal capacity to sue.

2nd. The allegation that defendant Edwards executed and delivered to Gerlach proper power of attorney to transfer upon the books of the company the stock sold to him in 1901.

3rd. The allegation that, after said sale of stock in 1901, the defendant Edwards ceased to be a shareholder in the company and that if the company was indebted to the plaintiffs, said indebtedness accrued long subsequent to the time when said defendant Edwards had ceased to be a stockholder in the company.

4th. The entire portion of paragraph five of said answer.

Defendants excepted to the action of the court in sustaining said motion. Plaintiffs thereafter filed an amended reply to the remaining portions of said answer. The reply contained a general denial and an allegation that the matters pleaded in the fourth paragraph of said answer constituted no defense to the plaintiffs’ cause of action under the laws of the State of Illinois as decided by the highest court of said State in the case of Gillett v. Chicago Title & Trust Co., 230 Ill. 373.

The record in this case is very large, but the facts shown by the evidence are not complex and may be stated substantially as follows: In 1892, one Gerlach, a resident of Chester, Illinois, having procured certain electric light and water franchises from the city of Chester, was desirous of promoting a corporation to take over said franchises and erect an electric light plant and a water plant in said city. In furtherance of this plan, Gerlach called upon defendant Edwards in St. Louis and laid the plan before him. Gerlach was, at that time, cashier of a bank at Chester, but was not a man of any great financial resources. Mr. Edwards was engaged in the brokerage business in the city of St. Louis and was a man of means. It was agreed between Edwards and Gerlach that they would organize a corporation, under the laws of Illinois, with a capital stock of $35,000, each to receive, approximately, one-half of the stock.' Gerlach was to superintend the construction of the plants and Edwards was to act as financial agent. The plan was to bond the company for $35,000 and, by the sale of the bonds, raise funds with which to construct the plants for the corporation. Gerlach’s stock was to be paid for by his transferring to the company the franchises which he held in the city of Chester. Edwards’s stock was to be paid for by services to be rendered by him as the financial agent of the corporation. The company was organized, J. D. Gerlach, A. D. Gordon, George L. Edwards, William H. Bryan and Harvey Neville each subscribing for one share and A. D. Grant (who acted as “straw man”) subscribing for three hundred and forty-five shares. After the corporation was organized, all of the stock subscribed for by Grant, with the exception of five shares, which he retained, was transferred on the books of the company, so that, finally, defendant Edwards held one hundred and forty-eight shares of the capital stock, Gerlach one hundred and forty-seven shares and the remaining stock divided in small amounts among other stockholders. Plaintiff Neville held two shares of the capital stock. After the corporation was organized, Gerlach transferred his franchises to the corpor: ation and the corporation began the construction of an electric light plant at Chester. The company had no funds with which to construct the plant but the money was raised by the corporation giving its notes, with Edwards as indorser. In this manner, five thous- and dollars was first raised; then six thousand dollars was raised, out of -which, the first five thousand dollars of indebtedness was paid, and, at another time, thirteen .thousand five hundred dollars was raised. The obligations upon which defendant Edwards became endorser were retired later with the money obtained from the sale of the mortgage bonds of the corporation. At the time that defendant Edwards was lending his name to the credit of the company, he was also the president of the company. Plaintiff Neville was treasurer of the company and also a director; and was the father-in-law of Gerlach. Gerlach was elected general manager.

At a meeting of the directors, on January 30, 1894, a resolution was passed allowing Gerlach the sum of $14,700 in payment for his franchises and, on motion of H. Neville, George L. Edwards, defendant, was allowed the sum of $14,900 for “services as financial agent and other services.” It appears that the stock of Gerlach and Edwards was paid for in this manner and that neither Edwards, Grant nor Gerlach paid any money to the corporation for their stock and did not render any further consideration to the corporation than that above mentioned.

There was evidence tending to show that the company was insolvent in 1901, but the failure of the company did not occur until about 1903, at which time the bond-holders filed á petition to foreclose the mortgage and a sale of the company property was had in such foreclosure.

Some of the witnesses testified that the services of defendant Edwards, as financial agent, were worth $15,000; one of the witnesses stated that he did not mean to say that they were worth that much in cash. There was evidence tending to show that the company would not have been able to build its plants if it had not been for defendant Edwards indorsing the company’s paper to raise temporary funds. It also appears, from the evidence, that defendant Edwards sold his’ stock to Gerlach, in November, 1901, Gerlach paying Edwards five dollars per share for the stock; but no transfer of the stock was ever made on the books of the company.

A number of opinions by the Supreme Court- of the State of Illinois were offered in evidence; also the statutes referred to in the pleadings. ' ■

Defendants offered in evidence an order made by the circuit court of the United States, at the city of Springfield, Illinois, on the twentieth day of November, 1903, appointing a receiver for the company. The order appointed Don E. Detrich receiver, and ordered him to take and hold the property of the company, described in the bill, until further order of the court, and' enjoined the defendant corporation, and all other persons, from interfering with any of said property and from prosecuting against said defendant corporation any suits or actions at law or equity.

The petition, applying for the receiver, is not set forth in the record, neither are any of the subsequent proceedings in said foreclosure proceeding set forth in this record, but it appears, in the evidence, that the corporate property sold for much less that the mortgage indebtedness.

All of the plaintiffs, except one, made proof of their claims by duly authenticated, certified copies of the record of the circuit court of Eandolph County, Illinois, showing -judgment for the respective amounts claimed by each plaintiff to have been rendered by the clerk, in vacation. The following is a copy of the record as to one of said judgments. All the judgments were similar as to form.

“Herman Schroeder v. | The Chester Light, Water & | Cognovit. Ice Company. |

“Now, on this 14th day of December, A. D. 1904, it being in vacation after September Term, A. D. 1904, of this court, comes the plaintiff, Herman Schroeder, by A. E. Crisler, his attorney, and files his declaration in a plea of trespass on the case on . promises, and files also the instrument in writing on which this suit is brought, to-wit: One promissory note, the execution of which is duly proven by the affidavit of ¥m. H. Miller, on file in this cause. -

“And now comes also the said defendant, by Don E. Detrich, attorney, and files herein his warrant of attorney, duly executed by the said defendant, authorizing him to appear in any court of record in behalf of said defendant and waive service of process, and confess judgment in favor of said plaintiff, and against said defendant, for the amount found to be due upon said certain promissory note annexed to said warrant of attorney, besides the costs of suit, the execution of said warrant of attorney being duly proved by the affidavit of ¥m. H. Miller on file herein; and said defendant’s attorney also files his cognovit, by which he waives service of process upon the said defendant and confesses the said action of the plaintiff, and that said plaintiff, by reason of the non-performance of the promises in the plaintiff’s declaration mentioned, has sustained damages in the sum of fifty-six dollars and seventy cents, it being the amount due on said note, over and above his costs by him in this behalf expended; and the said defendant, by its said attorney, consents and agrees that judgment may be entered in this behalf in favor of the said plaintiff and against said defendant for the amount of damages aforesaid, to-wit, for the sum of fifty-six dollars and seventy cents and for costs of suit; and release all errors in entering up this judgment, or in issuing execution thereon, and consents to the issuing of immediate execution, on the same. .

“By virtue whereof and in pursuance of the statute in such case, made and provided, it is considered that said plaintiff have and recover of and from the said defendant the said sum of fifty-six dollars and seventy cents, being the amount of damages so conr fessed as aforesaid, together with his costs and charges by him about this suit in this behalf expended and that he have execution therefor.

“Attest: W. Geo. Beever.

' ■ Clerk. ’ ’

Evidence was also introduced showing that ex7 ecutions were issued on these judgments and returned . not satisfied.

It appears, from the evidence, that Gerlach, prior to the institution of this suit, had received his discharge as a bankrupt.

It further appears, from the evidence, that plaintiff Neville, who was a stockholder and a director of the company, held two shares of the company’s stock and was elected treasurer of the company; that he was the father-in-law of Gerlach and was made a stockholder and director of the company so as to help supply a sufficient number of directors for the company and that all of his acts, in connection with the company, were done at the suggestion of Gerlach. Mr. Neville was engaged in steamboating and paid very little attention to the affairs of the corporation in question. However, we think that there is sufficient evidence to show that he knew that defendant Edwards’s stock was attempted to be paid up by the financial services rendered to the company by Edwards and, in fact, Neville made the motion, at a directors’ meeting, to allow Edwards $14,900 for his services as financial agent of the corporation. This resolution was passed by the board of directors. Mr. Neville had nothing to do with the books of the company and knew nothing about the company’s affairs, except information given to him by Gerlach and information obtained by him at directors ’ meetings. Neville loaned the company money, from time to time, and, at the time the company failed, it owed him for borrowed money the sum of $5,065.71. ■Since the trial was had in the circuit court, Neville died, and the suit, as to him, has been revived in the ■name of John D. G-erlach, his administrator.

We will first consider the appeal of the defendants below:

I. Appellants contend that the judgments introduced in evidence were insufficient in law to support the finding for plaintiffs. In this regard, it is contended that, in the petition, it is alleged that the plaintiffs’ respective claims are based upon judgments “in the-circuit court of Randolph County in the State of Illinois against, said Chester Light, Water & Ice Company” etc., whereas the proof offered show only judgments entered by the clerk of said court in vacation and that, since no proof of statutory provisions of Illinois authorizing a procedure of this character was offered in evidence, no presumption as to their validity can be- allowed. Respondents attempt to meet this contention by saying (1st) that the point was not raised below and hence cannot be reviewed here, and (2nd) although it had been properly raised below, yet the judgments were of a court of general jurisdiction and that it will be presumed that the court, had jurisdiction to enter the judgment unless it is affirmatively shown to the contrary.

Was the point sufficiently raised below? One of' the grounds of the motion for a new trial was the following: “Because the verdict and judgment is unsupported by any substantial evidence.” We think this, ground in the motion for a new trial raises the question as to the sufficiency of the evidence, which proposition,, necessarily, embraces the point now urged by appellants.

This brings us to the discussion of the questions upon its merits, to-wit, Was there a failure of proof' which rendered the evidence insufficient to support the-decree? The petition pleads the judgments- as judg--. ments of the circuit court. The proof shows judgments entered by the clerk of the court in vacation. Is the proof sufficient to establish the validity of the judgments offered in evidence? The only possible way that this proof could be established would be either (1st) by presumption arising from the record offered, or (2nd) by introducing in evidence the statutes of Illinois establishing the jurisdiction and authority to do that which it appears was done by the clerk in vacation. Since there was no attempt to make proof by introducing the statutes of Illinois, it leaves us to a determination of the sole question, to-wit, "Will it be presumed that the judgments introduced in evidence were regular and valid? We are of the opinion that the situation cannot be aided by presumption. This because the proceeding upon its face appears to be one unknown to the common law, and must, therefore, derive its validity from some statutory provision, and it also appears upon the face of the judgments that the judgments were not rendered by a court of general jurisdiction, but rather by one of the ministerial officers of the court, the clerk, in vacation.

Discussing the subject of the presumption to be indulged concerning judgments of' a sister state, Black on Judgments, vol. 2, sec. 875, states the correct rule, here applicable, as follows:

“And it is further to be observed that if the court, rendering the judgment was one of limited, inferior, or statutory jurisdiction, or if the proceedings were in derogation of the common law, jurisdiction will not be presumed, but must be affirmatively shown by the face of the record or fully and distinctly pleaded and proved.” (Italics ours).

It would appear that the manner of pleading such judgments in this State is regulated by section 1836, Revised Statutes 1909.- The foregoing rule, stated in-Black on Judgments, supra, was, by this court in Banc,, quoted with approval in the case of State ex rel. v. Grimm, 239 Mo. 340, l. c. 356, and should, therefore, he considered as controlling here.

In discussing the matter of the presumptions attending judgments of a sister state, Division One of this court, in the case of Norman v. Insurance Company, 237 Mo. 576, l. c. 584, said:

“Further, no matter whether the court of common pleas [of Philadelphia] is or is not a court of general . jurisdiction, its jurisdiction in attachment and garnishment proceedings, they being special and statutory, is not supported by the presumptions which usually attend the acts of courts' of general jurisdiction. ’ ’

Applying said rule to the situation here, it, necesr sarily, follows that the evidence is insufficient to support the decree, because of a failure to prove any statutory authority for the rendition of such judgments.

Respondents, in support of their contention, rely upon the case of Dodge v. Coffin, 15 Kan. 277, which appears to be in point. It appears, however, that the court’s ruling in that case was influenced, largely, by the fact that it took judicial notice of the statutory law of the State of Illinois. That is not the rule in this State. In Missouri, the statutory law of another State must be proven the same as any other fact in the case. [Gibson v. Railroad, 225 Mo. 473, l. c. 483; Norman v. Insurance Co., 237 Mo. 576, l. c. 582.]

II. It is contended that the court erred in failing to find that the services rendered the corporation by appellant Edwards were such services as could be given in payment of capital stock and that they were reasonably worth the sum 0£ £y.;9oo, the par value of the stock received by Edwards.

It appears that Edwards, the president of the comr pany, and one of its active promoters, claims to have paid for Ms stock by services rendered tbe company as financial agent. His said services consisted in aiding the corporation to procure temporary loans, Edwards lending Ms credit to tbe company as indorser on tbe paper. It does not appear that Edwards bad to pay any of these notes upon which he was indorser, but that the same were paid by money derived from the sale of bonds of the corporation. It further appears that the scheme of organization was that the company should be organized for $35,000 and that the stockholders intended to build the company’s plant, not from money paid upon the stock, but by bonding the company for an amount equal to the capital stock and then selling the bonds. In carrying out this plan, it was perhaps necessary that the work be started before the bonds could find a suitable market, and to this end Edwards aided, as above stated, in temporarily financing the proposition until the money could be realized on the bonds. Edwards paid no other consideration for Ms stock, and it would appear that even the services which he rendered were made necessary because of the fact that he had not paid anything on his stock. It appears that the plan was that the corporation should acquire its working capital from the proceeds of a liability (bonds) rather than from assets derived from stock subscriptions. And the said • services of Edwards were expended in thus promoting and financing the company. If services of this kind can be given by an officer of a company, in payment of his stock subscription, then the whole purpose of the law requiring stock to be paid in “money or money’s worth” can easily be defeated.

We think that the chancellor did not err in finding that, as against the claims of the general creditors, the services of Edwards, as financial agent, could not be given in payment of his stock. We have been unable to find a discussion of tMs exact point in any of the authorities, but it occurs to us that a bare statement of tbe matter is sufficient to justify the action of the learned trial court in the ruling made.

III. Appellants cannot now avail themselves of the point that the court erred in overruling their motion to strike the third amended petition from the files on the ground that it constituted a departure, this because error, if any, occurring thereby, was waived by appellants filing answer to the merits and going to trial. [Castleman v. Castleman, 184 Mo. 432, l. c. 440.]

The same also may be said with reference to the point that the court erred in overruling appellants’ motion requesting an election. [White v. Railroad, 202 Mo. 539, l. c. 561-562; Hanson v. Neal, 215 Mo. 256, l. c. 270-271.]

IV. Appellants contend that the court erred in striking out the several portions of their answer. Under the head of “Points and Authorities,” in their brief, appellants, concerning this proposifr°n> state, as follows: “The portions of defendants’ answers stricken out by the court on the motion of the plaintiffs, were material to the defense of these defendants, and error was, therefore, committed by the court in such action,” citing thereunder “31 Cyc. 639, and Hoffman v. Wight, 137 N. Y.621.”

There were many portions of the answer stricken out by the court and, with the aid only of the foregoing, it is difficult to ascertain what the point is, upon which appellants rely. The above statement under “Points and Authorities” is, in fact, nothing more than a mere assignment of error. Rule 15 of this court provides that ‘ ‘ all briefs shall be printed and shall contain, separate and apart from the argument or discussion of authorities, a statement in numerical order, of the points relied on, together with a citation of authorities appropriate under each point. And any brief'failing to comply with this rule may he disregarded by the court. ’ ’

In the recent case of Harrison v. Cleino, 256 Mo. 607, l. c. 608, in discussing this rule, Woodson, P. J., said:

‘ ‘ Clearly the meaning of the rule is, that the statement of the points shall he clearly and fully stated, in order that the court may comprehend therefrom the facts upon which the legal propositions presented for determination are predicated.”

Por the foregoing reasons, therefore, we will not attempt a discussion of this assignment of error.

Y.. We will now consider the appeal of the plaintiff, John D. Gerlach, administrator of the estate of Harvey Neville, deceased.

The points involved in this appeal do not differ, materially, from those discussed in the foregoing appeal, except in one important particular.

The trial court found against the claim of plaintiff Neville on the theory that since Neville had participated in the organization scheme whereby the financial services of Edwards were agreed upon and allowed to he given m payment of his stock, he could not now be heard to question that the stock was fully paid. The trial court based its ruling upon the authority of Meyer v. Mining & Milling Company, 192 Mo. 162, l. c. 191 et seq.

Appellants contend that the court erred in so holding and that the decree should have been in favor of plaintiff Neville’s claim, in accordance with the rule of-law announced in Gillett v. Chicago Title & Trust Co., 230 Ill. 373, which rule of law was pleaded by plaintiff in the reply. Respondents contend that the case of Gillett v. Chicago Title & Trust Co., supra, is not in point.

In the Meyer ease, supra, l. c. 192, it was held that “a party to the transaction whereby property was turned over to the company as payment in full for the stock issued, cannot be heard to say that the stock is not full paid stock, even though he has loaned money to the company, and cannot hold his fellow stockholders as for unpaid subscriptions on their stock, to satisfy a judgment in his favor for money actually loaned to the corporation.” In that case, the case of Sprague v. Bank, 172 Ill. l. c. 168-9, was relied upon by the losing party as controlling. In the Sprague case, it was held that the stockholder’s liability upon unpaid stock “is not dependent, in any degree, upon the knowledge possessed by the creditor that such subscription was •or was not paid in full. If unpaid to the corporation, It must be paid to the creditor.” [Sprague v. Bank, 172 Ill. l. c. 168-9.] In the Meyer case, after stating that the facts, of that case, were unlike those in the Sprague case, in that the creditor in the Meyer case was one of the original parties agreeing to the method by which the stock should be paid, while the creditor in the Sprague case did not stand in such a position, the court reached the conclusion that the Sprague case should not be considered as controlling, and used the following language (l. c. 194):

“If the facts in judgment in the Sprague case were like the facts in judgment here, this court might feel bound to enforce the interpretation placed upon the Illinois statutes by the court of last resort of that State, but the decision in the Sprague case imposes no such obligation on this court; and as such a result as is here sought is directly contrary to the rules that obtain in this State, this court will adhere to the rule heretofore announced by it in cases like this, until a similar case has been brought before the 'Supreme Court of Illinois and that court has otherwise declared the law in that State upon similar facts. ”

The basic facts involved in the case at bar are the same, in effect, as those held in judgment in the Meyer case and, under the above ruling, the Meyer case should he followed in the case at bar unless it appears that the Supreme Court of Illinois has held otherwise on similar facts.

Appellants contend that the above mentioned case of Gillett v. Chicago Title & Trust Co., is such a case, and that, since the facts involved in the Gillett case are similar, in effect, to those held in judgment in the Meyer ease, the Gillett case should control. If the principal facts underlying the Gillett case were the same as those discussed in the Meyer case, the position of appellants would be sound. But, after a careful consideration of the Gillett case, we are unable to discover that the facts discussed were similar. The discussion of this point in the Gillett case appears to he confined merely to the effect that the creditor’s knowledge of the unpaid stock has upon his rights to recover against the stockholder. [Gillett v. Chicago Title & Trust Co., supra, l. c. 414-415.] The opinion, in no manner, undertakes to discuss- the legal proposition passed upon in the Meyer case and now presented in the case at bar. In the Gillett case, it does not appear that either of the original incorporators who agreed that the capital stock should he paid up by certain prospective patents, etc., were creditors, as is the case of creditor Neville in the case at bar.

It, therefore, follows that the trial court was correct in following the Meyer case and in finding against plaintiff Neville.

VI. By reason of the conclusions reached in the foregoing discussion concerning the respective appeals, it follows that that portion of the judgment disallowing the claim of plaintiff Neville should be affirmed, and that the portion of the judgment finding in favor of the claims of the remaining plaintiffs and against the defendants should he reversed and the cause remanded.

It is so ordered.

Boy, G., concurs.

PER CURIAM. — The foregoing opinion by Williams, C., is adopted as the opinion of the court.

Baris, P. J., and Walicer, J., concur; Bevelle, J., not sitting.

ON MOTION TO MODIFY.

PER CURIAM. — Herman Schroeder et al., respondents in the above entitled cause, have duly filed a motion to modify the foregoing opinion so the retrial of the cause, when remanded, shall be confined to the single issue as to whether or not there was statutory authority in Illinois authorizing the entry and rendition by the clerk of the circuit court,-in vacation, of the various judgments relied upon by the respective plaintiffs (respondents herein), as a basis of their respective claims.

It appears that all other issues in the cause were ^properly tried and determined before and that the motion to modify should be sustained. [McLure v. Bank of Commerce, 252 Mo. 510, l. c. 524.]

It is therefore ordered that the foregoing opinion be modified so that instead of remanding the cause generally for a new trial, the cause be remanded with directions that the new trial shall be confined to the single issue as to whether or not there was statutory authority in Illinois authorizing the clerk of said circuit court to enter or render the' respective judgments upon which said respondents base their respective claims. Either party may, if they so desire, so amend the pleadings as to more clearly draw the issue upon this question.

After a determination of this single issue, the circuit court will thereupon enter its judgment or decree, in accordance with the facts heretofore found and the facts then found upon this issue.