text:
    PHILIP BASSE, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    July 3, 1908.
    Appeal from St. Louis City Circuit Court. — Hon. Jesse A. McDonald, Judge.
    Reversed and remanded (with directions).

   LAMM, J.

Tbis case is a companion case to Gracey v. City of St. Louis, supra, page 384. It stands here on a stipulation providing in effect that it abides tbe judgment in the Gracey case — tbe cause of action and tbe law propositions being tbe same, mutatis mutandis.

In accordance with that stipulation, tbe judgment in tbis case is reversed and tbe cause remanded; and tbe court, nisi, is ordered to set aside tbe nonsuit and proceed with tbe case in accordance with the opinion banded down in Gracey v. City of St. Louis, supra.

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


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    J. C. BUTTERFIELD, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    July 3, 1908.
    Appeal from St. Louis City Circuit Court. — How. Jesse A. McDonald, Judge.
    Reversed and remanded (with directions).

   LAMM, J.

This case is a companion case to Gracey v. City of St. Louis, supra, page 384. It stands here on stipulation providing in effect that it abides the judgment in the Gracey case — the cause of action and the law propositions being the same, mutatis mutandis.

In accordance with that stipulation, the judgment in this case is reversed and the cause remanded; and the court, nisi, is ordered to set aside the nonsuit and proceed with the case in accordance with the opinion handed down in Gracey v. City of St. Louis, supra.

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


text:
    J. E. WILLIAMS, Appellant, v. CITY OF ST. LOUIS.
    Division One,
    July 3, 1908.
    Appeal from St. Lonis. City Circuit Court.— Eon. Jesse A. McDonald, Judge.
    Reversed and remanded (with directions).
   LAMM, J.

This is a companion case to Gracey v. City of St. Louis, supra, page 384. It stands here on stipulation providing in effect that it abides the judgment in the Gracey case — the cause of action and the law propositions being the same, mutatis mutandis.

In accordance with that stipulation, the judgment in this ease is reversed and the cause remanded; and the court, nisi, is ordered to set aside the nonsuit and proceed with the case in accordance with the opinion handed down in Gracey v. City of St. Louis, supra.

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


author: WOODSON, J.

text:
    ALBERT LEE v. M. J. CONRAN, Appellant.
    Division One,
    July 3, 1908.
    1. JURY TRIAL: What Cases. All issues triable by a jury prior to the adoption of the Constitution of 1875, are still triable by a jury. That is the meaning of section 28 of article 2 of the Constitution which says that “the right of a trial by jury, as heretofore enjoyed, shall remain inviolate.”
    2. -1-: Quieting Title under Section 650. In a suit brought under section 650, Revised Statutes 1899, to ascertain and determine title to land, if the issues joined entitle the parties to an ordinary judgment at law, then the parties are entitled to a jury trial; but if the issues tendered are equitable in their nature and call for equitable relief, the cause is triable before the chancellor.
    3. -: -: Accretions. Suits involving questions of ac’cretions to lands are possessory actions and are for the re- . covery of specific real estate, and long prior to the adoption of the present Constitution and ever since, the issue of accretion or no accretion has been triable by a jury. So that where the » suit was brought by plaintiff, under Section 650, Revised Stat-I utes 1899, to ascertain and determine the title to certain lands, and defendant answers that the plaintiff bases his right thereto on the issue that they were accretions to certain of plaintiff’s shore lands, and denies they are such accretions, and affirmatively alleges that they were accretions to a certain island formed in the Mississippi prior to the law of 1895, and that defendant bought them from the county, the only issue is whether the land was an accretion to the shore or to the island, and is an ordinary one at law, and is triable by a jury, and if a jury is demanded it cannot be denied.
    4. ACCRETIONS: Evidence: Prior Application to County to Purchase. Evidence that prior to bringing his suit, in which he claimed that the land sued for was accretions to his shore land, plaintiff had made formal application to the county court to purchase the land, is competent evidence for the purpose of affecting plaintiff’s credibility as a witness. If the lands were accretions to plaintiff’s shore lands, there seems no good reason why he should have desired to purchase them from the county.
    Appeal from New Madrid Circuit Court. — Row. W. G. Russell, Special Judge.
    Reversed and remanded.

      Robert S. Rutledge for appellant.
    (1) The court erred in overruling defendant’s application for a jury to try the question of fact under the pleadings. Defendant set up in his answer that the land in suit was such as is designated in article 6 of chapter 122, Eevised Statutes 1899; and that he had bought same from New Madrid county. Under this answer it was a question of fact — Was it an island or not? Was it an accretion to plaintiff’s land on the old river bank or not? Under the pleadings, which was the issue tendered by defendant, the defendant asked and was entitled to a jury. E. S. 1899, see. 691; Grayson v. Weddle, 80 Mo. 39; Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurs-ton, 130 Mo. 339. (2) The court erred in refusing to permit defendant to introduce the minutes of the county court, and the application of plaintiff, Albert Lee, to purchase the land from the county, and erasures therein shown. (3) The court erred in refusing to permit ^defendant to introduce in evidence the application of H. O. Eiley to the county court to purchase the land on the island in front of his land on the bank. Also the quitclaim deed from Conran to Eiley. This written application of H. C. Eiley should have been admitted in evidence as showing that he considered the land an island and not an accretion to his bank, as the maps and surveys and all the testimony showed that a part of the island lay in front of his land on the old river bank, by the side of Lee’s. Also the quitclaim deed from Conran to Eiley to that part, when he found that Conran had become the owner. . The case was not tried before him, as the record discloses, because he was an interested party. (4) The court erred in its special finding of fact for plaintiff in every particular, and the same is insufficient. The answer made the issue one of fact, as there was no question about the law, and no declarations of law were asked, required or proper. The finding is also insufficient. Freeman v. Wilkerson, 50 Mo. 554; Hamil v. Talbatt, 72 Mo. App. 22. (5) The court erred in rendering judgment and finding for plaintiff. The finding of the court on the evidence and the judgment, we think, is against the great weight of evidence, and such as should not have been given. R. S. 1899, sec. 866; Joy v. Call, 124 Mo-. App. 569; Blount v. Spratt, 113. Mo. 48; Land Co. v. Bretz, 125 Mo. 418.

      W. II. Miller for respondent.
    (1) Appellant contends that the court erred in refusing to grant him a trial by jury of certain issues of fact which were necessary to a proper determination of the case, and cites in support of this point section 691, Revised Statutes 1899, and Grayson v. Weddle, 80 Mo. 39; Benoist v. Thomas, 121 Mo. 660; Gunn v. Thurs-ton, 130 Mo. 339. It is sufficient to say that none of these citations are at all in point. In an equity case the court may or may not submit issues of fact to the jury. Its refusal to do so is never error and if it does do so it is not bound by the verdict. Bern v. Powell, 83 Mo. 365; Keithley v. Keithley, 85 Mo. 217; Estes v. Fay, 94 Mo. 660; Hatcher v. Emerson, 73 Mo. App'. 287; Weil v. Kune, 49 Mo. 158. (2) Appellant complains that the court erred in refusing to permit defendant to introduce the minutes of the county court and the application of Lee to purchase the land from the county. ' This was not error, under any circumstances, because Lee himself testified, as also Judge Stacy, presiding judge of the county court, that Lee was simply trying to “buy his place.” In other words, he preferred to pay $1.25 per acre for the land rather than litigate about it with the defendant,- Conran. Subsequent events have developed the fact that his action was right from a money standpoint, because this litigation has already cost him much more than $1.25 per acre for the land involved. The law encourages compromises and never permits things said or done in an effort to compromise to be used to the disadvantage of the party. (3) Complaint is made because the court refused to allow defendant to introduce in evidence the application of Judge Riley to purchase some land in front of his property on the river bank, not in front of the Lee property, but, for aught the court knows, miles away, and also a deed from Conran to Riley. This was not competent under any view. First: It did not touch the land in question; second: it was not affecting the points to the law suit, Lee being a stranger to the transaction, and was the purest and rankest kind of hearsay, and tended to prove no issue whateyer in the case.
   WOODSON, J.

This suit is based upon section 650,’ Revised Statutes 1899, to determine and quiet title to the lands described in the petition.

The petition, in substance, alleges that the plaintiff is the owner of the lands in fee simple; that no one is in possession of same, except that he has from time to time cut and removed timber therefrom; that the defendant claims some title, estate or interest in and to the same, the nature and character of which claim is not known to plaintiff, and for that reason it cannot be described, except that it is adverse and prejudicial to the plaintiff.

Omitting the formal parts, the answer is as follows :

“Now comes the defendant herein and for amended answer to plaintiff’s petition denies each and every allegation therein contained, not hereinafter admitted, and prays for judgment against plaintiff for costs.
“Further pleading, defendant denies that plaintiff is now or ever was the owner of the'lands set out in plaintiff’s petition, but expressly avers that defendant is the owner of said lands and was at the time of the filing of plaintiff’s petition herein, and that plaintiff well knew that fact.
“Further, defendant admits that plaintiff at and before the filing- of plaintiff’s petition herein was trespassing upon said lands and did trespass upon said lands and cut and remove large quantities of valuable-timber therefrom; defendant denies that plaintiff did not know the nature and character of the. title, interest and estate of defendant in and to said land, but expressly avers that plaintiff did well and truly know the-exact nature and character of defendant’s title, estate and interest in and to said land.
“Defendant says that the land described in plaintiff’s petition is located in the Mississippi river on the-west or Missouri side of the center of the main channel of said river and in New Madrid county, Missouri; that it is an island formed in said river long prior to April 8th, 1895 ; that at and for a long time after its first formation or appearance as an island it was entirely surrounded by the waters of the river and that for many years the water flowed between said land and the Missouri bank of the said Mississippi river; that there-were accretions to said island from time to time until it became a large body of land. That said land- is and was on April 8, 1895, such land as is designated in the provisions and grant of article 6 of chapter 122 of the Revised Statutes of Missouri of 1899’, as an act of the Legislature of Missouri, approved April 8, 1895, entitled, ‘ An Act to grant certain lake and river bed lands to the counties in which they are located for school purposes.’ That under said act of the Legislature said lands became the lands of New Madrid county, Missouri, and that prior to the filing of plaintiff’s petition herein defendant purchased said land from said New Madrid county and obtained from said county a'patent therefor from said county and became the true and legal owner of said lands in fee simple; that all of said facts were and are well known to said plaintiff herein, and that on the--day of--, 1903, after said lands had been by the connty court of New Madrid county sold to this defendant, this plaintiff made application to the county court of New Madrid county, Missouri, to and for the purchase of said lands from said county, and that by said act and his pleadings herein said plaintiff is now and ought to be estopped from setting up title to said land. Defendant says that he is the true and legal owner of all of said lands in plaintiff’s petition described, seized in fee of said lands, and prays judgment.”

The reply was a general denial of the new matter stated in the answer.

When the case was called for trial, the defendant-made formal demand for a trial by jury, which demand was by the court refused, and the defendant duly excepted to the action of the court in so refusing.

The witnesses were numerous and the evidence is voluminous, covering about one hundred and fifty-pages. That for the plaintiff tended to prove that he was the owner in fee simple of certain lands situate on the Missouri side of the Mississippi river, in New Madrid county, and that the lands in suit were accretions to his said shore lands.

The defendant’s evidence tended to prove the allegations of his answer — that the lands in controversy-had recently accreted to an island which had existed in the Mississippi river for several years prior, and that he purchased them from the county of New Madrid, and received a patent therefor prior to the institution of this suit.

The defendant requested and the court made a. special finding of facts, which, omitting formal parts,, is as follows:

“Now again come the parties in the above styled cause, which was at the September term, 1904, of this-court taken under advisement until this term of court, and the court being now sufficiently advised what judgment to render, doth find:
“That at the time of the institution of this suit and for a great number of years prior thereto the plaintiff was the owner of the following described real estate lying and being in the county of New Madrid and State of Missouri, to-wit: the northeast quarter of northeast quarter and west half of the northeast quarter and the southwest fractional quarter and 51.54 acres off of the south side of the northwest fractional quarter of section 35, township 21, range 15.
“The court further finds that the southwest fractional quarter and the 51.54 acre tract in the northwest fractional quarter above described abut on the Missouri shore of the Mississippi river.
“The court further finds that there has been accreted to said lands and within the extension of the lines thereof the following:
“Commencing at the southeast corner of the northeast quarter of the southwest quarter of-section five,, township twenty-one, range fifteen; thence South to Winchester Chute, thence west with said Chute to what is known as Dry Chute; thence north to a line even with north line of said Albert Lee’s farm, which is a dividing line between the northwest quarter of section five, township twenty-one, range fifteen; thence east on said line to the northwest comer of the said Albert Lee’s farm on Donaldson’s Point, in New Madrid county, Missouri.
“The court further finds that said accretion consists of a gradual and imperceptible addition to plaintiff’s river front, and that the same was built from the shore or plaintiff’s river front into the waters of the Mississippi river and was continuous.
. “The court further finds that by reason of the facts as hereinbefore found the plaintiff is th.e owner of the real estate herein described as an accretion to his original property.”

The court overruled defendant’s exceptions to the special finding of facts, to which ruling the defendant duly excepted.

The court then entered the following judgment and decree:

. “Wherefore, it is ordered, adjudged and decreed that the title to the land described as follows: Commencing at the southeast corner of the northwest quarter of the southwest quarter of section five, township twenty-one, range fifteen; thence south to Winchester Chute; thence west with said Chute to what is known as Dry Chute; thence north to a line even with the north line of the said Albert Lee farm, which is a dividing line between the northwest quarter of section five, township twenty-one, range fifteen; thence east on said line to the northwest corner of said Albert Lee farm on Donaldson’s Point in New Madrid county, Missouri, be and the same is in the plaintiff and that the defendant has no title or interest therein. It is further adjudged that plaintiff have and recover of and from defendant his costs in this proceeding expended, and that execution issue therefor.”

Defendant in due time filed and the court overruled his motion for a new trial, to which ruling defendant duly excepted, and appealed to this court.

I. The first insistence of appellant is that the action of the trial court in refusing him a trial by jury was error.

So far as I am aware, this court has never passed directly upon the question as to whether or not the parties to a suit based upon section 650', Revised Statutes 1899, are entitled to a jury.

In order to properly determine that question we must first ascertain the nature of the issues joined and the remedy the parties are entitled to under the pleadings. If the issues joined entitle the parties to an ordinary judgment at law, then, under the Constitution and the laws of the State, the parties are entitled to a trial by a jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor.

Section 28 of article 2 of the Constitution of 1875 provides that “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” This court, in the case of State v. Bockstruck, 136 Mo. l. c. 358, held that the constitutional guaranty of “the right of trial by jury as heretofore enjoyed” has reference to the status of that right as it existed at the time of the adoption of the Constitution. And this court, in the ease of State ex rel. v. Withrow, 133 Mo. l. c. 519, held that said section 28 “means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existed at common law.”

In order to determine whether the case at bar comes within the meaning of that section of the Constitution as interpreted by those adjudications, we must first determine what the issue tendered by the pleadings is, and, after doing so, we must then ascertain how that issue was triable before the adoption of that constitutional provision; if by jury, then either party is entitled to a trial of that issue by a jury regardless of any statutory provision; but if it was not triable by jury prior to that time, then the Constitution does not govern, and we would then look to the statutes and the common law for a rule by which to solve the question.

We will first determine the nature of the issue presented by the pleadings. The petition charges that the plaintiff is the owner of the land described therein, and that defendant claims some interest or estate therein, the nature of which is unknown to plaintiff, except that it is adverse and prejudicial to his interests. The answer denies the allegations of plaintiff’s ownership, and alleges that the lands are accretions; that plaintiff claims that they accreted to his patent land on the Missouri side of the Mississippi river; that he claims and charges the fact to he that they are accretions to an island formed and located in the Mississippi river; that under an act approved April 8, 1895, the title to such lands vested in the county for the use of the public schools; and that he purchased them from the county of New Madrid. When reduced to its final analysis, the issue is plainly one of accretion —that is, was the land in question accreted and added to the shore line of plaintiff’s land, by gradual and imperceptible alluvial deposits, or was it added by that means to the lands of the island? If to the former, then the title is in plaintiff as charged in his petition; but if to the latter, then they belong to the defendant. That is the sole and only question presented by the pleadings; and that was the finding and judgment of the trial court.

Having determined that the issue is one of accretion, we will now ascertain in what manner that issue was triable at common law and under the statute of this State prior to the adoption of the constitutional provision. I have been unable to find a case in this State where that precise question has been decided, yet by an examination of numerous cases, which fill our reports, involving the question of accretion, I find that they were invariably tried before a jury, except in a few cases where a jury was waived. In addition to that, I might add that during the thirty years I have been practicing law and occupying the bench, I have never seen or heard of a case in which it was contended that the question of accretion was not triable by a jury. Clearly that was the practice prior to the passage of section 650, Revised Statutes 1899, which was enacted in the year 1897. All suits in this State prior to .that enactment involving questions of accretion were possessory actions, and were for the recovery of specific real property. In fact, without that section, I know of no way in which the question of accretion could be tried, except by ejectment, which has always been triable by jnry, excepting, of course, those cases where the answer set up an equitable defense and cross-bill and asked for affirmative relief, which were and are triable before the chancellor without the aid of a jury. If it be true that prior to the adoption of the constitutional provision mentioned the question of accretion was triable alone in some action involving the recovery of the specific land accreted, then under the express provisions of section 691, Revised Statutes 1899, which was enacted long prior to the adoption of the Constitution of 1875, the issue was triable by a jury. That section of the statute provides that, “An issue of fact in an action for the recovery ... of specific real or personal property must be tried by a jury,” etc.

From these observations it seems to be clear that the question of title by accretion was one triable by a jury prior to the adoption of said section 28 of the Constitution; and, consequently, in obedience to its mandate, any action involving that issue must still be triable by a jury regardless of any subsequent legislation upon the subject.

We are, therefore, of the opinion the court erred in refusing defendant a trial by a jury.

II. It is next insisted by appellant that the special finding of facts made by the court is not supported -by the evidence, and that it is against the weight of the evidence:

We have carefully read all the evidence, and, after due consideration thereof, we are unable to lend our concurrence to that insistence. As decided in paragraph one of this opinion, this is an action at law, and the rule in such cases is, that where there is substantial evidence introduced which sustains the verdict of the jury, or the findings of the court, this court will not interfere.

In the case of Brecker v. Fillingham, 209 Mo. l. c. 583, in discussing the same question, this language was used: “It is not for this court to pass upon the weight of the evidence; that is within the province of the triers of the facts. Where the evidence introduced is conflicting, the jury or the trial court are the sole judges of the credibility of the witnesses and the weight to be given to their testimony; and this court will not usurp their prerogative by saying which side has the preponderance of the evidence. Their finding is conclusive upon this court.” [Citing Culbertson v. Hill, 87 Mo. 553; Dobbins v. Humphreys, 171 Mo. 198-202; Weller v. Wagner, 181 Mo, 151.]

HI. Defendant offered to prove that prior to the bringing of this suit, plaintiff offered to purchase the land in question from the county court, and made a written application to do so. The court excluded the offer, and, defendant duly excepted.

We are of the opinion that the action of the , court in excluding that evidence was error. The evidence should have been admitted for the purpose of affecting his credibility. He testified that the land in suit was accretions to his land, and, consequently, if that was true, he must have owned it at that time; and if he owned it, the question might, with propriety, be asked, why did he wish to purchase it from the county? We are of the opinion that the evidence offered should go to the jury, and be by it considered as a fact or circumstance in considering what weight they should give to his testimony.

We are, therefore, of the opinion that the judgment should be reversed and the cause remanded for a new trial. It is so ordered.

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


text:
    DONALDSON BOND & STOCK COMPANY, Appellant, v. LOUIS HOUCK.
    Division One,
    July 3, 1908.
    1. LAW CASE: Issues of Fact. Where a jury is waived in a law case and the issues of fact are submitted to the court, all presumptions on appeal are in favor of the correctness of the findings of the court upon the questions of fact involved.
    2. -: -: Individual or Corporation. Notwithstanding defendant in his letters to plaintiff concerning the building of a railroad and the sale of bonds and stock, the money to be used in the construction of the road and á part of the bonds and stock to be given to plaintiff as his compensation for finding a purchaser therefor, often used the words “I” and “my railroad," etc., yet if there are facts to justify the trial court in finding that defendant never intended to contract with plaintiff in his individual capacity, but on the contrary that in all the correspondence leading up to the final contract between the plaintiff brokerage company and the railroad company organized as a result of their negotiations and in developing their scheme for building the railroad there was an implied term that plaintiff and defendant, in their final developed plan, would deal with each other as corporations, this court will not interfere with the finding of the trial court that the bonds and stock promised plaintiff as a bonus for its services as a broker were bonds and stock to be furnished by defendant’s railroad company and not by him as an individual.
    3. -:-: -: Novation. Where what was done by the parties to a contract, was not to introduce or substitute a new party, a railroad corporation for the principal owner of its stock, but was the very agreement itself contemplated by the principal persons conducting the negotiations, the doctrine of novation does not apply. Where plaintiff brokerage company, looking forward to a contract which all the correspondence and surrounding facts indicate it had in contemplation, accepted a contract which narrated, not that defendant in his individual capacity, hut that the railroad company which was to he organized to construct a railroad along a defined; route and which was organized in pursuance of the scheme originally outlined by defendant and plaintiff and which began to construct the road in pursuance to the outlined plan, and further narrated that the railroad company, and not defendant in his individual capacity, needed money to construct that road, and that the railroad company, and not defendant, had authorized plaintiff to sell the railroad company’s bonds and to have as a compensation for making the sale ten per cent of the whole amount of bonds issued, and which further narrated that plaintiff had carried out that very contract of sale and had fulfilled its obligations thereunder and was entitled to compensation as it set forth, it cannot be held that the contract was a mere order for bonds, or the attempted substitution of a contract between plaintiff and the railroad company in lieu of an already binding and existing contract between plaintiff and defendant as an individual, but the contract evidenced those matters deemed vital by the contracting parties and merged into itself all prior negotiations, and the doctrine of novation does not apply.
    4. -: -: -: Appellate Practice: Obiter Matter. It is not proper to determine a point not necessary to a decision of the case. Where defendant was not bound in his individual capacity under the contract, it is not necessary to determine whether or not the railroad company which defendant organized and controlled is, because of indifference and neglect, liable for a failure to consummate the building of.the railroad after the trust company failed in its agreement to purchase the bonds as the contract recited it had done, the contract further reciting that ten per cent of the bonds were to go to plaintiff as compensation for finding a purchaser for the balance, and he sues the individual defendant only for those bonds.
    6. SALE: Agent’s Compensation: Procuring Purchaser: Refusing Instruction: No Evidence. Where there was no evidence of any probative force that plaintiff was the procuring cause in finding a buyer for defendant’s railroads, it is not an error for the trial court to refuse an instruction to the effect that if defendant employed plaintiff to find for him a purchaser for his system of railroads and promised plaintiff- a reasonable compensation if it would do so, and thereafter plaintiff disclosed to defendant the names of two persons likely to buy said railroads and opened negotiations with them for the purchase of the roads, and shortly thereafter in consequence of such disclosures and negotiations defendant was enabled to sell and did sell his said roads to' said persons, etc., then plaintiff is entitled to recover reasonable compensation, etc. Where said persons were not the purchaser, but one of them became a member of the syndicate which did purchase, testimony showing that plaintiff knew nothing of the formation of that syndicate is an impassable obstacle to plaintiff’s recovery.
    6. -: -: Evidence of Value. Where defendant was not liable to plaintiff as his agent in procuring a purchaser for his railroads, the exclusion of evidence going to the measure of damages is not error.
    Appeal from St. Louis City Circuit Court. — Row. Bobt. W. Foster, Judge.
    Affirmed.

      T. K. Skinker and Wm. B. Donaldson, Jr., for appellant.
    (1) (a) The evidence shows without contradiction that defendant promised to pay plaintiff $25,000 in bonds and $50,000' in stock of a railroad company to be organized by him to build a line of railroad between Cape Girardeau and Perryville in Missouri, if plaintiff would place the bonds of the company at eighty cents on the dollar, so as to enable defendant to build the road, and that plaintiff accepted the offer by placing the bonds. This constituted an executed contract between plaintiff and defendant. It is this contract on which plaintiff sues in the first count. The court found that there was no contract and therein committed error, (b) It is immaterial that plaintiff did not in writing accept defendant’s offer and agree to render the service. Lindell v. Rokes, 60 Mo. 2491; Allen v. Chouteau, 102 Mo. 323; Lancaster v. Elliott, 28 Mov App. 86; Underwood Typewriter Co*, v. Realty Co., 118 Mo. App. 197 ; Laclede Construction Co. v. Tudor Iron Works, 169 Mo. 139; School District v. Sheidley, 138 Mo. 672; Koch v. Lay, 38 Mo. 147; Morse v. Bellows, 7 N. H. 549; Harris v. Stevens, 7 N. H. 464; Lent v. Padelford, 10 Mass. 230; Sharp* v. Bates, 102 Md. 344; Railroad v. Scott, 72 Tex. 70; Bishop v. Baton, 161 Mass. 496; Hooker v. Hyde, 61 Wis. 204; Hutchinson v. Railroad, 37 Wis. 601; Railroad v. Smith, 144 Mich. 235; Story on Contracts (5* Ed.), sees. 380, 390; Cummings v. Clinton County, 181 Mo. 162; Harson v.' Pike, 16 Ind. 140; Baker v. Hoag, 7 Barb. 113; Ryer v. Stockwell, 14 Cal. 137; Reif v. Page, 55 Wis. 493; Bank v. Hart, 55 111. 62; Wilson v. McClure, 50 111. 366. (2) The agreement dated August 2, 1901, between plaintiff and the St. Louis, Cape Girardeau & Southern Railroad Company did not supersede the contract above shown, or release defendant from liability on it, or exonerate him from the duty of paying to plaintiff $25,000 in bonds and $50,000 in stock of the railroad company, or damages in lieu thereof. Badger Lumber Co. y. Meffert, 59 Mo. App. 437; Powell v. Charless, 34 Mo. 485; Leabo v. Goode, 67 Mo. 126; Snyder v.- Kirtley, 35 Mo. 423; Appleton v. Kenyon, 19 Mo. 637; Selby v. McCullough, 26 Mo. App. 72; Jackson v. Bowles, 67 Mo. 610; Mount v. De Haven, 29 Ind. App*. 127; Lane v. Collier, 46 Ga. 580; Bank v. Gardiner, 57 Mo. App. 268; Brown v. Croy, 74 Mo. Ap*p. 462; Johnson v. Weed, 9 John. 310; Noel v. Murray, 13 N. Y. 167; Tobey v. Barker, 5 John. 68; Glenn v. Smith, 2 Gill & J. 493; Puckford v. Maxwell, 6 T. R. 52; Thornberry v. Thompson, 69 Mo. 481; Pratt v. Morrow, 45 Mo. 406 ; Russell v. Berkstresser, 77 Mo. 426; Haubert v. Mausshardt, 89 Cal. 433;' Witbeck v. Waine, 16 N. Y. 532; Chapman v. Railroad, 146 Mo. 508; Van Vliet v. Jones, 20 N. J. L. 340; Babcock v. Hawkins, 23 Vt. 561; Stamper v. Johnson, 3 Tex. 1; Taylor v. Bank, 5 Leigh 471; Brent v. Richards, 2 Grat. 539; Bowles v. Elmore, 7 Grat. 385*; McDaniels v. Robinson, 26 Vt. 316; Keefer v. Zimmerman, 22 Md. 285; Tarr v. Northey, 17 Me. 113 ; Daughtry v. Boothe, 2 Jones L. (N. C.) 87; Drown v. Forrest, 63 Vt. 557; Lawall v. Roder, 2 Grant’s Cases, 426; American Paper Bag Co. v. Van Nortwick, 3 U. S. C. O. A. 274; Illinois Oar & Equipment Company v. Linstroth Wagon Co., 112 Fed. 737; Chitty on Contracts, pp. 658, 665; 1 Beach on Modern Law of Contracts, sec. 453; In re Lemerise, 73 Vt. 304; Gerhart Realty Co. v. Northern Assurance Co., 94 Mo. App. 356; Thatcher v. Dudley, 2 Root 169 ; Goodrich v. Stanley, 24 Conn. 613; Hall v. Smith, 15 Iowa 584; Munford v. Wilson, 15 Mo. 540; Chrisman v. Hodges, 75 Mo. 413. (3) There was evidence tending to show that defendant employed plaintiff to find for him a purchaser of the Houck roads and the stock of the corporations owning the same; that plaintiff found the purchaser in the Fordyce-Guy-West syndicate and thereby entitled himself to compensation for the service. The court refused plaintiff’s instruction predicated upon this evidence and therein committed error. Tyler v. Parr, 52 Mo. 249; Merton v. Case Co., 99 Mo. App. 630; Timberman v. Craddock, 70 Mo. 638; Lipscomb v. Cole, 81 Mo. App. 53; Campbell v. Vanstone, 73 Mo. App. 87; Crone v. Trust Co., 85 Mo. App. 607. (4) The court erred in refusing to allow evidence to be given that the bonds of the St. Louis & Gulf Railway Company received by the syndicate of which defendant was a member, were worth par. Butler v. Murphy, 106 Mo. App. 287.

      Eleneious Smith for respondent.
    (1) Where a jury is waived and the issues of fact are submitted to> the court, all presumptions are in favor of the correctness of the findings of the court upon the question of fact involved. Gaines v. Fender, 82 Mo. 509; Jordan v. Davis, 172 Mo. 608; Friedman ■v. Kelly, 102 S. W. 1068; Johnson v. Luttman, 88 Mo. 567; Bozarth. v. Legion of Honor, 93 Mo. App. 564; Meyer v. Ins. C'o., 73 Mo'. App. 166. (2) In an action at law tried by the court sitting as a jury, the action of the court upon declarations of law is important only as indicating the theory on which the case was tried. Baumhoff v. Bailroad, 171 Mo. 120; Dollarhide v. Mabarry, 125 Mo. 197; Suddarth v. Bobertson, 118 Mo. 286; Crescent Planing Mill Co. v. Spilker, 77 Mo. App. 409.
   LAMM, J.

Plaintiff is a domestic corporation doing business in St. Louis as a buyer and seller of bonds, stock and other securities, to-wit, a broker. Defendant is a railroad builder and promoter living in Cape Girardeau. This is an action to recover the aggregate sum of $175,000; for services alleged to have been rendered defendant personally in plaintiff’s capacity as broker.

The petition is in two counts, as follows:

“The plaintiff states that it is a corporation organized and existing under the laws of the State of Missouri concerning business corporations, and authorized by its charter to negotiate loans of money and to sell bonds and corporate stocks; that in the year 1900 the defendant was desirous of building a railroad in the State of Missouri between the city of Cape Girardeau in the county of Cape Girardeau and- the city of Perryville in the county of Perry, but defendant was without the means of building the same; that thereupon defendant proposed to plaintiff a plan whereby defendant would be enabled to build said railroad, as follows: That defendant should cause a railroad company to be organized for the purpose of building the same and should cause stock and bonds to be issued by said company, and should cause the bonds to.be guaranteed by a railroad corporation organized under the laws of the State of Missouri known as the Chester, Perryville and Ste. Genevieve Railroad Company, ■which, company was then operating a railroad in the State of Missouri; and should cause twenty-five thousand dollars of such bonds and fifty thousand dollars of such stock to be given to the plaintiff, provided plaintiff would negotiate a sale of other bonds and stock of said company for money to be used by defendant and the company so to be organized in building said railroad. Plaintiff states that plaintiff accepted defendant’s said proposal, and thereafter defendant caused a corporation to be incorporated for the purpose of building said railroad known as the St. Louis, Cape Girardeau and Southern Railroad Company; that thereupon plaintiff negotiated a sale of bonds and stock of said railroad company to- the Missouri Trust Company, and procured said trust company to agree in writing, to take such bonds and stock of said railroad company and to pay for them in installments as the work of constructing said railroad should progress, provided that the said company should complete said railroad on or before the first day of July, 1902; and said railroad company by the same agreement, on its part, agreed to deliver to said trust com-, pany its said bonds and stock to- be so paid for, and agreed to construct its said railroad and to complete the same by the first day of July, 1902. Plaintiff states that the defendant has at all times been the controlling spirit in the enterprise of building said railroad, and has at all times managed the same through persons put into said company as its stockholders, directors and officers, by his advice and influence, and that he has at all times been the real owner of said company; and that defendant and said railroad company have not built said railroad or any part thereof, and have abandoned the scheme of building the same, and have not caused said bonds to be guaranteed by the Chester, Perryville and Ste. Genevieve Railroad Company, whereby the bonds and stock of said St. Lonis, Cape Girardeau and Southern Railroad Company have never attained any value, and that defendant has never caused any of such bonds or stock to be delivered to the plaintiff. Wherefore plaintiff says that it is damaged in the sum of seventy-five thousand dollars, for Avkick sum, Avith costs, it prays judgment.
“For another and further cause of action, plaintiff states that heretofore, to-wit, in the fall of the year 1901, the defendant, being the holder, legal and equitable, of all the stock in certain railroad corporations then building, owning and operating a system of railroads in Southeast Missouri, known as the St. Louis, Kennett and Southern Railroad, the Clarkton Branch of the St. Louis, Kennett and Southern Railroad, the St. Louis, Morehouse and Southern Railroad, the Pemiscot Southern Railroad, the Chester, Perryville and Ste. Genevieve Railroad, Houck’s Missouri and Arkansas Railroad, the Cape Girardeau, Bloomfield and Southern Railroad, the St.-Louis, Cape Girardeau and Southern Railroad, and other railroads, all commonly called the Houck Roads, employed the plaintiff to find for him a purchaser of said railroads and the stock of the said railroad corporations, and agreed to pay plaintiff a reasonable consideration if he would find such a purchaser; that plaintiff proposed the purchase of said railroads and stock to several persons, among whom was one Samuel W. Fordyce; that said persons took up and considered said proposals and negotiated with plaintiff concerning them, and eventually the said Fordyce, in consequence of said proposals and acting upon them, concluded a negotiation with plaintiff and defendant, whereby he purchased said roads and stocks for himself and others, at a large price, to-wit, two millions of dollars and more; that defendant has refused to pay plaintiff for its service in finding for him said purchaser; that the service so rendered by plaintiff to defendant was reasonably worth one hundred thousand dollars. Wherefore plaintiff prays judgment against defendant for the sum of one hundred thousand dollars with its costs.”

The answer was a general denial.

The trial was without the aid of a jury. Plaintiff asked two declarations of law — the first on the first and the second on the last count. The court gave the first and refused the second. These declarations follow:

“1. The court declares the law to be that if the court shall find from the evidence that defendant planned to build a railroad between the cities of Cape Girardeau and Perryville in Missouri, through the instrumentality of a railroad company to be incorporated for that purpose and, in order to enable- him to carry out his said plan, employed the plaintiff to negotiate and sell bonds and stock of the company so to be incorporated, and for services to be rendered in making such negotiation and sale agreed to pay and deliver to plaintiff $25,000 of the bonds and $50,000 of the stock of such company, and if the court shall further find that the defendant did cause a railroad company to be incorporated for said purpose by the name of the St. Louis, Cape Girardeau & Southern Railroad Company, and thereafter plaintiff did negotiate a contract with the Missouri Trust Company of St. Louis, whereby said trust company did agree to take and pay for bonds and stock of said company on terms approved by defendant - and if -the court shall further find that among other things it was provided by said contract that the bonds to be issued by said railroad company should be secured by a first mortgage on all of the property of said company, and also by the guarantee of the Chester, Perry-ville and Ste. Genevieve Railroad Company, a corpora.tion then owning a railroad in Missouri, and also by a second mortgage on the property of the latter company, and that the money should he paid by said trust company for said bonds as sections of five miles of the road of said St. Louis, Cape Girardeau and Southern Railroad Company should be built, and that the whole of said road should be completed by the first day of July, 1902; and if the court shall further find that said railroad was not completed and no section thereof was built by the first day of July, 1902,-and that said St. Louis, Cape Girardeau and Southern Railroad Company has abandoned the construction of said road, and that none of said bonds 'or stock have ever been paid or delivered to the plaintiff — then the court will find' for the plaintiff and will assess his damages at such-sum as the court may believe from the evidence the bonds and stock the plaintiff was to have received would have been worth in the market when they should have been delivered to him.
“2. The court declares the law to be that if the court shall find from the evidence that defendant employed plaintiff to find for him a purchaser for a system of railroads in Southeast Missouri, known as the Houck roads, and promised to pay plaintiff a reasonable compensation for such service; that thereafter plaintiff' disclosed to defendant the names of Fordyce and Guy as persons likely to buy said roads and opened negotiations with Fordyce for the sale of said roads, and shortly thereafter in consequence of such disclosures and negotiations defendant was enabled to sell and did sell his said roads, or an interest in them, to said Fordyce, Guy and their associates, then the court will find for the plaintiff, and will assess its damages at such sum as will be reasonable compensation to it for the service so rendered.”

The judgment was for defendant on both counts, and plaintiff appeals. The motion for a new trial assigned for grounds (now pressed) the following:

“1. ' That the finding of the court was against the evidence, and against the weight of the evidence and against the law under the evidence.
“2. That the court erred in refusing to give the plaintiff’s second declaration of law.
“3. That the court erred in excluding evidence offered by the plaintiff.”

Any fact vital to a just determination of errors assigned will appear in the opinion. Counsel in their briefs have treated the case as naturally dividing itself into two parts — the first relating to the first count, the second to the last. We shall preserve that line of demarcation.

I. It will be seen that the trial court agreed with plaintiff’s counsel on the law applicable to the first count, if the facts therein hypothecated were found to exist. Evidently, the court found the facts against plaintiff, otherwise judgment would -have gone in its favor.

There are two main propositions plaintiff must maintain in order to convict the trial court of error in its finding on the first count, viz.: (1) It must show it contracted (to the effect stated in that count) with defendant individually; and (2) it must show it performed the contract. If there was substantial evidence tending to show either of these propositions not true, plaintiff must be cast.

In determining either, we must be guided by the stiff rule of law thus aptly formulated by defendant’s counsel: “Where a jury is waived and the issues of fact are submitted to the court, all presumptions are in favor of the correctness of the findings of the court upon the questions of fact involved.”

In Hamilton v. Boggess, 63 Mo. l. c. 251, et seq., Napton, J., said: “When a case is submitted to a court and a jury dispensed with, the facts upon which the court bases its judgment are incontrovertible here. This court has only the power to review the- law declared by the court below, and when that court is entrusted with both the facts and the law, we must assume the facts to be as that court finds them,” JudgeNapton adding that he made the observation because “we wish it to be understood that it is not our province to determine facts, or review the findings of juries or courts on them, except in chancery cases.”

Keeping that proposition constantly in mind as a guiding pole star, we come to the first proposition discussed by plaintiff’s counsel, viz.: That a contract, as alleged in the first count, was made individually with defendant.

(a) To maintain that proposition great reliance is put on the phrasing of many letters from defendant during the years 1900-1-2. Later a formal written contract relating to the same subject-matter was made between plaintiff and a certain railroad corporation, to be noticed further along. Defendant’s counsel insists said formal written contract was the only contract and that defendant was no party to it. Plaintiff’s counsel, per contra, insist that such written contract was a mere order for bonds. Their theory is that defendant’s position on the written. contract is merely invoking the doctrine of novation — a doctrine (they say) inapplicable under the facts of this case. They say the real contract is evidence by the antecedent letters.

Attending, then, to the letters we shall not encumber this opinion with them for they are many and some of them are voluminous in detail. To understand them an outline of the situation surrounding the writers and their relation to each other is necessary. Letters intended to be jjrivate not infrequently change their whole character when made public and when a third person attempts to interpret doubts and ambiguities, unless unmentioned details serving to give the right meaning to the words (and which details are understood by the addressee), are supplied. “The relation between two persons forms a key to their correspondence for which nothing else can be substituted.” [Lieber’s Hermeneutics, p. 145; Evans v. Evans, 196 Mo. l. c. 20, et seq.]

In brief, the situation surrounding, and the relations between Donaldson, president of the plaintiff corporation, and defendant were these:

In past years, from time to time, defendant had caused to be organized a group of allied railroad corporations in Southeast Missouri and, as • a contractor, had built a half-dozen short lines (aggregating 200 miles or so) for such corporations, forming a gridiron on the map of Southeastern Missouri. He had taken his pay in bonds and stocks. Through the ownership of a majority of the stock he was the controlling and moving spirit in these enterprises. Through Donaldson as president of plaintiff brokerage company he had negotiated such bonds in St. Louis. Hard times had depressed these enterprises. Rival lines were threatened. We infer some of the bonds had been hypothecated as collateral for loans then pressing payment. The situation was such that the future of the bonds already sold and others about to be issued (or issued and hawked on the market) for the completion of lines already building was somewhat uncertain. At the times in hand defendant is shown to have been in sharp financial straits. We pause to point out that this very fact is not. without significance in determining the question whether plaintiff was relying on Mr. Houck’s personal obligation at the outset. Be that as it may, the correspondence covered the whole situation. It pointed to the sale of some of the foregoing bonds. It pointed to a general scheme of sustaining the value of the bonds secured on the roads then built and being completed, in all of which plaintiff as a. broker had a live interest to protect its customers who had bought them. In this condition of things, in letters dealing with the general situation outlined above, defendant introduced into the correspondence the idea of connecting the “lower system,” of what may be called the * Houck Eailroads, ’ ’ with the upper system ’ ’ by building a line of a few miles (say 45) from Cape Girardeau north to Perryville, with the ultimate intention of bridging the Mississippi in the neighborhood of Ste. Genevieve, crossing into Hlinois and getting into St. Louis through the American Bottom. Mr. Houck signed his letters as an individual. He used the pronouns “I” and “me” copiously. He spoke of the roads built or building as “my” roads — of the contemplated line from Cape Girardeau to Perryville as “his,” and- plaintiff relies strongly on such twist of phrase as tending to show a contract between plaintiff corporation and defendant as an individual.

But we cannot allow this view controlling force for several reasons. One reason is that a little subconscious egotism is allowable as a trick of speech to a man who has achieved some greatness (not from things merely said, but) on the arduous plane of things actually done. It must be remembered that Mr. Houck was speaking of things not inaptly described by the phrase of the old worthy (Csesar, maybe): “All of which I saw and much of which I was.” There is no pretense that Donaldson was misled by the ego.

Another reason is that while Mr. Houck signed his letters as an individual and freely used pronouns in the first person singular, yet he also addressed' his letters to “ J. W. Donaldson” individually. He used the address, “My dear Mr. Donaldson,” “Dear Sir,” etc. Mr. Donaldson was an old business friend of his. In turn the letters written to Mr. Houck are signed in one or more instances by Mr. Donaldson individually, but mostly by “J. W. Donaldson” with such several addenda as “Ps’t,” “Pres.,” “Pi,” “Prest.”

Now, if we are to narrowly interpret the letters from an individual standpoint, they would, if held contractual, bind Donaldson individually as .well as Houck and the suit would be between the man Donaldson and the man Houck, but the truth is that while Houck wrote to Donaldson as an individual he knew that Donaldson was the titular and actual head of plaintiff corporation and did business through that corporation. So, too, Donaldson knew that plaintiff’s plan was to do this business through the medium of a railroad corporation. Neither party had the advantage of the other in that respect. The eyes of both were wide open, and their minds met on that proposition. But as the letters show Houck to be in financial straits, so they also' show that the contemplated scheme (one of several described in the letters) for a railroad from Cape Girardeau to Perryville could not be carried out except the contemplated corporation was put on its feet by the sale of its bonds. Everything hinged on that fact. Houck told Donaldson that the road was to be built by a corporation not in existence and it will not do to say that Donaldson, an experienced broker, did not know that before the end was consummated his company would have to contract and deal with a corporation in this “hazzard of new fortune.” He is presumed to know that under our statutes an individual did not possess the right of eminent domain for .railroad building in Missouri. He knew that a corporation would have to spring into existence to build that road, issue the stock and bonds and secure the latter by a mortgage.

Accordingly, we are of the opinion that the circumstances surrounding all the parties and throwing light on the verbiage of the letters were of such sort that the court could well find that Houck never intended to be bound personally and that Donaldson had notice of that fact — that their minds never met on any such proposition, as will further appear later when the written contracts are considered.

The very letter on which plaintiff chiefly relies to establish the contract sued on shows it was not intended as a contract. It was in the nature of a preparatory negotiation, a tentative suggestion — “a feeler” — to see what Donaldson could do' to better the whole Houck system, the success of which, as shown aliunde, Donaldson’s company was already interested in. That letter is as follows:

‘4 Cape Girardeau, Mo., Aug. 27,1900.
“ J. W. Donaldson, Esq.,
Third and Olive streets,
St. Louis, Mo.
“My Dear Mr. Donaldson:
“Enclosed I send you a statement of the’indebtedness of my several roads and earnings of the same from July, 1899', to the end of June, 1900. Also in brief words an outline of my scheme to connect roads, which I explained to yon verbally. The map I will try and send up some time during the week, as quick as Major Brooks can finish it. Other information that you may want please write me and I will furnish it.
“In regard to the extension north will say that I expect to sell to the people along the line bonds at par to the amount of forty or fifty thousand dollars, so that if you can make a sale of $175,000 of the bonds at 80 cents on the dollar I could put that road through. This would leave $25,000 of bonds as a bonus for you, and to that I would also add a bonus of $50,000 of the stock of the line between Cape Girardeau and Perry-ville.
“In order to connect the Bloomfield roád with my roads from Cape Girardeau south I would have to build from Zeta to Yanduser. (Yanduser is a station about 6 miles southwest of Morley.) That distance is about 11 miles. And I also want to pnt in the extension between Bloomfield and Dexter, about 8 miles. Total distance 19 miles. This additional road I will want to bond for $100,000; and if you can place the bonds, selling $90,000 at 80 cents on the dollar, it will give you a bonus of $10,000 in bonds and $25,000 in stock.
“As soon as these several links are built we will have over 300 miles of road, and a total indebtedness on all this line of but little over $1,400,000. The earning capacity of the property will be unequaled, and I am sure that we will make the stock earn dividends shortly after we have got the lines combined. Of course, after these connections are built the next thing will be to construct 35' miles into St. Louis, and get a bridge across the Mississipi somewhere above Ste. Genevieve. I believe that would be a comparatively easy proposition for us to carry through. In three or four years, if we all live, we ought to be able to see daylight, and in some way or other I ought to be, as you put it, ‘easy with regard to construction of road ■and not always in hot water.’
“Wish you would see what you can do now first with reference to securing me the money on $175,000 of bonds at 80 cents on line between Cape Girardeau and Perryville. I want to get that line under construction quick if possible. After we have got that fairly under way I think you can easily, perhaps, arrange to get what small amount I want to construct a connection to Bloomfield and Dexter.
“In the meantime do not neglect to try and sell four or five thousand dollars of bonds for me of the Perryville Road. I want, of course, one-half to be applied to pay note, and the other half, I need not say, I need just now. I am out of pocket money and everything else. Very truly yours,
“Louis Houck.”

Presently, a railroad corporation was organized styled the St. Lonis, Cape Girardeau and Southern Railroad Company to build a line from Cape Girardeau to Perryville and plaintiff was instrumental in procuring a contract between that corporation and the Missouri Trust Company to float the bonds.

Plaintiff’s written proposition to the trust company (accepted by it) contained the following:

“We will join you in the subscription to the issue taking the $225,000, a. 80=$180,00,0' — and getting as a bonus a portion of the capital stock amounting to $112,500, or 1125 shares. ’ ’

Subsequently, it was agreed that the bond issue should be increased from $225,000 to $250,000, and the final contract includes that sum. Though plaintiff did not sign the contract between the trust company and the railroad company, yet the record shows that, as a sort of underwriting side-partner, it was jointly interested with the trust company in the scheme to float the bonds, and was to share in its aforesaid stock bonus. We may say in passing that the scheme had developed and changed from time to time; and, after the letter of August 27, 1900, supra, we find nothing more in the correspondence relating to the $50,000 stock bonus suggested in that letter. It is a fair inference, therefore, that the new scheme whereby plaintiff was to share in the trust company’s stock bonus and profits took the place of the original tentative suggestion relating to stock and is the only stock bonus finally provided for.

The aforesaid contract between the trust company and the railroad company is long and need not be reproduced. Shortly, it narrates that the railroad company contemplates constructing a line of railroad from Perryville to Cape Girardeau, about forty-five miles, and to obtain part of the money required proposes to sell its stock: and bonds. That the bonds are to an amount of $250,000. That the stock consists of 4500-shares full paid np common of the par value of $100 each and no more. That the trust company is to- be trustee in the mortgage and the bonds are to be secured by the guaranty of another'little railroad (naming it) then subject to a prior mortgage securing $140,000. The railroad company sells and the trust company buys $225,000- in bonds and $112,500' in stock for $180,000 in installments as certain sections of the road are built —the road to be completed by the 1st of July, 1902.

On a record thus outlined, the trial court could well find that Louis Houck never contracted and never intended to contract with plaintiff brokerage company in his individual capacity as alleged in the first count of the petition. The court could well find and presumably did find that there was an implied term in all the antecedent preparatory negotiations between Houck and Donaldson to the effect that when the plan developed sufficiently to take form and substance, the promoting brokers would deal directly with a railroad corporation.

(b) The conclusion reached in paragraph a is much strengthened by after events. At a certain time plaintiff caused to be sent to defendant an agreement in writing for execution by him and the railroad company. Its draft follows:

“St. Louis, Mo., July 31, 1901.
“This agreement entered into this day by and between Louis Houck for himself and also the St. Louis, Cape Girardeau & Southern R. R. Co., a corporation duly organized under the laws of the State of Missouri, and the Donaldson Bond & Stock Co. of St. Louis, Witnesseth: That said L. Houck and the St. Louis, Cape Girardeau & Southern R. R. Co. are constructing a railroad from Perryville in Perry Co., Mo., to Cape Girardeau City, Mo., and for means to enable them to carry out the project and construct the road, authorized the Donaldson Bond & Stock Co. to sell for them $225,000 of 1st. Mort. 5% bonds secured by first mortgage on said road which the said Donaldson Bond & Stock Co. did, and sold to the Missouri Trust Co. said bonds, and contracts signed in duplicate as to the delivery of bonds and payment of moneys therefor have been delivered and accepted under seal by said St. Louis Trust Co. And the said Donaldson Bond & Stock Co. having carried out their contract of sale and fulfilled their obligations are entitled to their compensation for services rendered. Namely upon the execution of the bonds by the E. E. Co. and viseing of the same by the Trust Co. said Donaldson Bond & Stock Co. are to receive $10,000 in bonds and upon completion of the first ten miles of said roads they are to receive $5,000 in bonds more of said 1st mortgage bonds, for the next ten miles $5,000 and when the line is completed from Perryville to Cape Girardeau the balance $5,000 in full, making a total of $25,000 in bonds out of a total of $250,000 in bonds issued by the railroad company and of which issue the Missouri Trust Co. bought $225,000 in bonds.”

The scheme had been brewing in sundry phases of development for nearly a year, when the foregoing proposed agreement was forwarded to defendant. When he received it he changed its terms SO' as to strike out all provisions and narrations binding himself. He drafted a new contract and forwarded it to Mr. Donaldson. The record shows that Mr. Donaldson was advised fully in the premises. He well knew the significance of the alterations made. Neither of these men were novices. To the contrary, they were alert and seasoned veterans in business. Eeferring to the proposed agreement forwarded by him to defendant, Mr. Donaldson testified in part as follows:

“Q. You say in there you tried to put the name of Louis Houck as a party to the contract? A. Yes, sir.
<CQ. And you notice we struck it out? A. Yes, sir.
“Q. And we sent you that contract? A. Yes, sir.
“Q. And you got it? A. Yes, sir.
“ Q. And what did you object to in it — simply the two clauses and not that the defendant had not signed it? A. I did.”

Evidently the time to speak was ripe. Instead of speaking, plaintiff company through Donaldson raised other objections to the submitted) draft but entirely acquiesced (by silence) in the elimination of defendant as a contracting party and actually signed a contract with the railroad company, which Donaldson on the stand interprets as a mere order for bonds, but which we do not think can be justly reduced to any such narrow limits. To our minds it is the very contract contemplated from the start and which gives plaintiff his right of action, if any, on the facts of this record. That contract as licked into shape by negotiation (omitting signatures) follows:

‘ ‘ Agreement.
“This agreement entered into this day by and between the St. Louis, Cape Girardeau & Southern Railroad Company, a corporation duly incorporated and organized under the laws of the State of Missouri, and the Donaldson Bond & Stock Company, of St. Louis, Witnesseth:
“Sec. 1. That the said St. Louis, Cape Girardeau & Southern Railroad Company are constructing a railroad from Perryville, in Perry county, Missouri, to Cape Girardeau, in Cape Girardeau county, Missouri, and for means to enable them to carry out the project and construct the road authorized the Donaldson Bond & Stock Company to sell for them two hundred and, twenty-five thousand ($225,000) dollars of the first mortgage five (5%) per cent bonds secured by a first mortgage on said road, which the said Donaldson Bond & Stock Company did, and sold to the Missouri Trust Company said bonds, and contract signed in duplicate as to the delivery of bonds and payment of moneys therefor having’ been delivered and accepted under seal by said St. Louis, Cape Girardeau & Southern Railroad Company and Missouri Trust Company, and the said Donaldson Bond & Stock Company having carried out their contract of sale and fulfilled their obligations are entitled to their compensation for services rendered, namely: Upon the execution of the bonds by the railroad and viseing of same by the Trust Company, said Donaldson Bond & Stock Company are to receive an order on said Trust Company for delivery of ten thousand dollars' in bonds, and upon completion of ten miles of said road they are to receive a further order of five thousand dollars in bonds more of said first mortgage bonds; for the next ten miles an order of five thousand; and when line is completed from Perryville to Cape Girardeau an order for the balance on said Trust Company for five thousand dollars in full, making a total of twenty-five thousand dollars in bonds out of a total of two hundred and fifty thousand dollars in bonds issued by the railroad company, of which issue the Missouri Trust Company bought two hundred and twenty-five thousand dollars in bonds. .
“Sec. 2. It is agreed by the' Donaldson Bond & Stock Company that they will not sell any of these bonds until at least twenty miles of the road is completed.
“Sec. 3. And further it is agreed that in case the said Missouri Trust Company should in anywise fail or refuse to carry out the contract for the purchase of said two hundred and twenty-five thousand dollars of bonds that the bonds to be delivered hereunder are to be returned to said St. Louis,. Cape Girardeau & Southern Railroad.
“Sec. 4. And it is further agreed that the interest coupons of the said ten thousand dollars of bonds delivered and of the several installments of bonds of five thousand dollars shall not be paid by the said company until one year after the completion of the said road between Cape Girardeau and Perryville.
“In witness whereof, this contract has been signed and attested by the seal of said St. Louis, Cape Girardeau & Southern Railroad Company by its president and attested by the seal of the company, this 2d day of August, 1901. . . .
“It is mutually agreed that sections marked 3 and 4 of above contract shall be and are hereby revoked and this following section marked 5 be substituted in lieu thereof namely, section 5. It is further agreed that for coupons on $25,000' bonds due respectively, 1st .Jany. 1902, and 1st July, 1902, the following agreement shall obtain, viz.:
“The St. Louis, Cape Girardeau & Southern R. R. Co. will give the Donaldson Bond & Stock Co. the notes of the company for all coupons maturing on bonds delivered them as above, as follows: For coupons due Jany. 1, 1902, amounting to $625 the note of the company payable one year after date with 5% interest, and for coupons due July 1, 1902, amounting to $625’— note of the company for same amount due Jany. 1,1903, with interest at 5% per annum. The .Donaldson Bond & Stock Co. to take up the coupons for those two terms on bonds delivered them as said coupons mature by depositing the money to pay the same with the Missouri Trust Co. as a special fund for the coupons on the $25,000 in bonds or any part of the said $25,000 in bonds delivered to them.”

Defendant relies on that contract as covering the subject-matter of the suit as to the bonds to be given in compensation for services. As said heretofore, plaintiff’s learned counsel argue that such contention is but an effort to apply the doctrine of novation to the ease. They argue that defendant, being individually bound originally, now seeks by way of a shield against liability to introduce a new party by novation to which plaintiff must look for its pay. They have industriously collected a line of cases holding, in effect, that, where there is an original binding contract, a contracting party cannot escape liability by novation or substitution where there is no consideration for the new agreement, where the old contract was not rescinded or abandoned, or where the new agreement did not cover the whole subject. We shall not enter into a discussion of those contentions for the reason that we have reached the conclusion that the doctrine of novation is not in the case. What was done here was not to substitute — it was the very thing itself. When plaintiff corporation, looking forward to a contract as we have held it did, accepted one, as it did, which narrated (not that Houck, but) that the railroad company was constructing a railroad from Perryville to Cape Girardeau, that (not Houck, but) the company needed means to enable it'to carry out the project, that (not Houck, but) the company had authorized plaintiff to sell its bonds which plaintiff had done, and which narrated that plaintiff had carried out that very contract of sale and had fulfilled its obligations thereunder and was entitled to its compensation for services rendered as set forth — we say all these things appearing in set phases, it cannot be fairly held that it was a mere order for bonds. It must be held that it was contractual in its nature, that it evidenced those features finally deemed vital by the contracting parties, and merged into itself all prior negotiation's. The legal principles involved are so primary that they need no re-enforcement by citation of authority.

In view of the premises we are unwilling to hold that the court erred in giving the instruction on the first count and then finding the facts against plaintiff.

II. The evidence shows that the bonds were never delivered to plaintiff, that no bonds were ever sold, and that the road was abandoned, It seems the president of the Missouri Trust Company, Mr. Crandall, dying, new officers took charge of its affiairs who raised the point that the railroad company had violated the contract. They criticised the scheme as it then stood and suggested a new one. No new contract was consummated and the whole thing fell through. There is some evidence squinting towards the fact that the railroad company or Mr. Houck, or both, became lukewarm and indifferent and failed' to go on. . In this condition of things, we are asked to measure out praise and blame, to hold that plaintiff fully performed its contract to find a purchaser for the bonds who was solvent and obligated to take them and that the failure of the scheme is due to the conduct of defendant. But it must be self-evident that having held that defendant did not contract with plaintiff individually, there is no need to determine questions so raised, hence, the cause of action alleged in the first count of the petition being determined before those questions are reached, they become by-matter.

Wo phon'd nn+ determine a point not necessary to a decision and thereby in anywise prejudge a cause of action which plaintiff may or may not have on that very issue of fact against the St. Louis, Cape Girardeau & Southern Railroad Company.

ILL Did the court err in refusing the instruction covering the second count ? We think not. However correct as an abstract proposition of law, it was properly refused because there is not evidence of any probative force that plaintiff was the procuring cause of the sale mentioned in that count. The documentary-evidence introduced on that count, including letters and option agreements, and the oral testimony, of which there was much, clearly show that plaintiff was not the procuring cause. True, plaintiff at one time was negotiating with Mr. Fordyce. True, Mr. Fordyce was a member of the last syndicate formed to buy and which did buy the Houck roads. But there is no testimony that Mr. Fordyce became a member of the final syndicate through the effort of plaintiff. It is the other way. Mr. Houck was engaged on independent lines in the sale of his stock in the Houck system. The early negotiations in which plaintiff took part came to nothing and were abandoned to all intents and purposes. The testimony shows that plaintiff knew nothing of the formation of the last purchasing syndicate. These facts present an impassable obstacle in the way of recovery.

We conclude the finding, nisi, was right on the second count.

IV. In its motion for a new trial the plaintiff alleges error in excluding evidence offered on the second count. This evidence went to the measure of the damages, but as we have held that under the facts and the law there was no liability, it follows that an exception saved on the exclusion of evidence of that character could not constitute reversible error. But on any view, the testimony excluded was too remote. It related to the value of bonds issued after the system was sold.

The cause appears to have been well tried and well decided.

Accordingly, the judgment is affirmed.

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


text:
    W. A. GILCHRIST v. JOHN R. BRYANT, Appellant.
    Division One,
    July 3, 1908.
    1. ABSTRACT: No Index. Where the abstract, printed in fair type, consists of only five pages, an index is unnecessary. The rule ends with the reason of it.
    :2. -: No Exceptions. Where the abstract shows that a bill of exceptions was allowed, signed and filed, but does not show a single thing identified as set forth in the bill, not even any testimony or any exception to any ruling, or any instruction, there is nothing before the court but the record proper.
    •3. QUIETING TITLE: General Denial. Where the petition alleges that plaintiff is the owner of the land in “fee simple absolute,” and the answer denies that plaintiff has any interest in the land and avers that defendant has none adverse to plaintiff and claims- no interest in himself, it cannot be seen how defendant is much damaged by a judgment decreeing title in plaintiff, in the absence of any testimony that may be con- ' sidered on appeal.
    Appeal from Mississippi Circuit Court. — Ho». H. C. Riley, Judge.
    Affirmed.
    H. 0. O’Bryan and Boone & Bee for appellant.

      Russell & Beal for respondent.
   LAMM, J.

This is a suit under section 650, Re-wised Statutes 1899, to ascertain and determine the •estate, title and interest of plaintiff and defendant, repectively in the south half of the southwest quarter ■of section 31, township 23, range 17 in Mississippi county, Missouri, and to define and adjudge the title, •estate and interest of said parties severally in and to such real property.

Plaintiff, wanting Ms title qMeted and settled, brought suit alleging in Ms petition that he was the •owner of the land in “fee simple absolute,” and averring that “defendant claims to have title to an interest in the land and real estate, which is adverse, hostile and injurious to plaintiff.”

To the foregoing petition, defendant answered by a general denial — i. e., he denied (inter alia) the allegation that he claimed title to or any interest in the land adverse, hostile or injurious to plaintiff.

The judgment was in favor of plaintiff, and defendant appeals.

I. It is argued the abstract is imperfect, in that it ■ does not comply with our rule requiring an index. But, as it is only five pages, all told, and is printed in fair type, an index would only impose an additional labor on the court in using it to examine the abstract. There being no office for it to fill, it could fill none. The rule ends with the reason of it, and trifles concern not the law. The point is ruled against plaintiff.

II. The abstract shows a bill of exceptions was signed, allowed and filed, but it does not show a single thing identified as set forth in the bill of exceptions. There is no bit of testimony, or any exceptions, or one ruling said to be contained and preserved therein from caption to signature.

By Eevised Statutes 1899, section 864, we are for- ' bidden to consider any exceptions “except such as shall be expressly decided by such court” — that is, by the trial court.

Now, it has always been held that an exception • can be preserved for appellate use nowhere else than in a bill of exceptions. Therefore the bill of exceptions should show the exceptions. Therefore the abstract of • the bill of exceptions should show that the bill of exceptions shows the exceptions. [Thompson v. Ruddick, this volume, p. 561, and cases dted.]

There might as well be no bill of exceptions, at all, as to file here an abstract which does not in some reasonable way point out what it contains. No court should guess at what is in such bill. The case, then, must be considered as if no bill of exceptions had been filed. *

The premises considered, we can examine only the record proper, and have done so. We find the petition states a cause of action and supports the judgment. This being so the latter must be affirme.d.

This ruling is softened to us by the fact that it is apparent defendant has no paper title. So, too, the case is presented to us on the theory of defendant’s counsel, that neither party is in possession. The land is admittedly wild, unfenced and uncultivated. All the equities are with plaintiff, who holds under a chain of title originating in a defective foreclosure sale under a school mortgage forty years ago.

Furthermore, defendant does not claim title in his answer. By filing a general denial he denied that plaintiff claims title or was the owner in fee simple absolute, but he did not stop with that — mark, he also denied that he, himself, had any claim, title or interest in the land hostile to plaintiff. On such a pleading can defendant be much injured by a judgment in favor of plaintiff? Let the judgment be affirmed. It is so ordered.

All concur except Vcilliant, P. Jwho is absent.