author: WOODSON, J. —

text:
    MORAN BOLT & NUT MANUFACTURING COMPANY v. ST. LOUIS CAR COMPANY, Appellant.
    Division One,
    April 1, 1908.
    1. CONTRACT: Reformation: Preponderance of Testimony. In an equitable proceeding to reform a written contract on tbe ground of mistake, tbe burden of proof rests upon tbe party wbo asserts tbe mistake, and be must establish it by clear and convincing evidence, or tbe relief will be denied. In tbe absence of a preponderance of tbe evidence in bis favor, however clear and positive this may be, tbe contract must stand as written. And where defendant’s purchasing agent, wbo made tbe contract for defendant, refused to state positively that tbe contract did not state tbe true intention of tbe parties thereto, but contented himself with testifying that be believed that the contract was to tbe effect that defendant was to take all or such part of tbe one thousand tons of iron as defendant might need, whereas tbe contract itself unequivocally obligated defendant to take that number of tons, and plaintiff’s testimony is unequivocal that tbe contract as written expressed tbe true terms of tbe agreement entered into, tbe contract cannot be reformed to comply with tbe testimony of defendant’s purchasing agent.

      2. - SALES: Contract: Breach: Mutuality. A contract for the sale of bars of iron in which the quantity sold is stated therein, or from which the quantity may be made certain from the words used, is not void for lack of mutuality or uncertainty.
    3. -: -: -: --: This Contract. A letter addressed to plaintiff by defendant read: “Enter our order for 1,000 net tons of bar iron at $1.70 per 100 lbs., F. O. B., our works, half card extra. - No charge for cutting to length 5 feet or over. Specifications to be furnished during balance of the year. Terms 30 days net from date of arrival of material.” This order was accepted, and about five hundred tons shipped thereunder, and thereafter defendant refused, though often requested within the year, to specify out any more bars, or to otherwise comply with the order. Held, that the contract was not void for lack of mutuality, or as being unilateral or for uncertainty as to the amount of iron bars to be shipped, for the quantity is not only stated, but the evidence shows that the words “bar iron” in the contract have reference to a certain base size, and the words “half card extra” to list prices stated on a card for bar iron above the base size.
    4. -: -: Technical' Words: As Interpreted by Parties. Oral evidence is admissible to prove the meaning of words used in a written contract where they have a special or technical meaning in the connection in which they are used, and where it is shown all the parties were familiar with them and with the sense in which they were employed. And where both put the same meaning upon them, in the giving and filling of orders thereunder, the contract is not void for uncertainty or indefiniteness or for lack of mutuality.
    5. —-:-: Breach: Refusal to Accept Goods. A refusal by a purchaser to specify out goods according to the written contract therefor and to accept such goods, constitutes a breach of the contract, and the seller is entitled to recover the consequential damages that flow from such breach.
    Appeal from St. Louis City Circuit Court. — Eon. Daniel G. Taylor, Judge.
    Affirmed.

      W. E. Fisse for appellant.
    (1) Under the evidence the finding and judgment upon the cross-bill should have been in favor of defendant. (2) The first and third instructions given by the court at the instance of the plaintiff are erroneous. (a) Both instructions are based upon the theory that the agreement in question amounted to a sale of certain and existing articles of merchandise, whereas the agreement was, in fact, for uncertain and unspecified merchandise, to be manufactured in the future, (b) The rule of damages set out and directed' in the third count to be applied was erroneous. Since the agreement contemplated the future manufacture of the goods, the measure of damages, at most, was simply the difference between the contract price of the manufactured; articles at the place of delivery and the cost of manufacturing and delivering at that point. As plaintiff furnished no evidence of the amount of this difference it was not entitled to recover substantial damages. (3) The contract was wholly unilateral and became obligatory upon defendant only to the extent that its separate definite orders were accepted. and complied with by plaintiff. (4) The subject-matter of the contract was so vague and indefinite as to render the entire contract void except as, by action of the parties, it became definite and was fulfilled. Every action, however, taken towards rendering the general contract certain was merely the conclusion of new and separate agreements for specific quantities of ascertained merchandise. Hence, the fulfillment of specific orders, given by defendant, was not a performance of any general contract, but merely the fulfillment of separate and independent -specific agreements. (5) The alleged agreement sued upon was a mere price list. (6) There was no consideration for the agreement to keep the price and terms open till January 1, 1904, and the agreement to keep* the promise open for the designated period was not obligatory on either side.

      Kinealy & Kinealy for respondent.
    (1) The judgment of the court against appellant upon its cross-hill was correct. Meredith v. Holmes, 105 Mo. App. 343. (2) The contract here involved is amply sufficient to support an action for damages for its breach. Laclede Con. Co. v. Moss Tie Co., 185 Mo. 25; Green v. Higham, 161 Mo. 333; Black Biver Lumber Co. v. Warner, 93 Mo. 374; Rhodes v. Holladay-Koltz Co., 105 Mo. App. 279; Am. Linseed Co. v. Eberson, 104 S. W. 121; Nelson v. Hirsch, 102 Mo. App. 498. (3) The court correctly instructed the jury as to the measure of damages. Warren v. Mayer Mfg. Co., 161 Mo. 112; Bank v. Ragsdale, 171 Mo. 168; Black Biver Lumber Co. v. Warner, 93 Mo. 374; Range Co. v. Mercantile Co., 120 Mo. App. 438.
   WOODSON, J. —

The plaintiff sued the defendant in the circuit court of the city of St. Louis to recover some ten thousand dollars. The petition contained three counts. The first was predicated upon the following written contract, whereby the defendant purchased of plaintiff one thousand tons of bar iron, to-wit:

“Order No. 22917.
“St. Louis Car Company,
“St. Louis, Mo., 6 — 3-03.
“To Moran Bolt and Nut Mfg. Co.,
“Please furnish this company with the following material and ship same to ........................
“Enter our order for, 1,000 net ton of bar iron at $1.70 per 100 lbs., F. O. B., our works, half card extra.
No charge for cutting to length 5 feet or over.
“Specifications to be furnished during the balance of the year.
“Terms 30 days net from date of arrival of material.
Yours very truly,
“St. Louis Cab Co.,
“By Abb Cook, Par. Agt.”
Letter of Acceptance.
“St. Louis, Juné 10, 1903.
“St. Louis Car Company, City.
“Gentlemen:
“We are pleased to acknowledge receipt of your contract of June 3d for 1,000 tons bar iron, order No. • 22,917. We are also in receipt of your order No. 22,944 for, estimated, 98,000 pounds of iron. We forward this order to the mill with the request to make
prompt shipment.
Respectfully yours,
“Moran Nut and Bolt Manufacturing Co.”

It was further alleged that under this contract plaintiff delivered to defendant a total amount of 961,550 pounds, and judgment was sought for the balance due on account of the material so delivered.

The second count was for damages because of the failure and refusal of the defendant to specify, accept and receive the balance of 1,038,450 pounds of bar iron covered by the above contract.

The third count was for a balance due on account of bolts and nuts sold to the defendant.

The defendant’s answer was a general denial and a cross-bill wherein it - set up that on the 3d day of June, 1903, it entered into a contract with the plaintiff which as written was of the purport set out in the petition; that that contract was negotiated with one Fletcher as the agent of plaintiff, and that thereafter the defendant delivered to the plaintiff certain merchandise failing within the contract, and that the defendant paid for everything it purchased from plaintiff except the sum of $3,171.38, which was tendered to plaintiff on the 9th day of February, 1904; that the writing constituting the agreement between plaintiff and defendant was executed on behalf of the defendant by Abe Cook, who was the purchasing agent of the defendant, and that he had no power to bind the defendant by any such contract, and that the contract set out in that writing was not the agreement which was really made between said C.ook and Fletcher, and praying that the written contract might be reformed in order to conform with the real agreement made so as to read as follows:

“Enter our order for all or such part of one thousand net tons of bar iron as we may require between this date and the 31st day of December of the current year at $1.70 per one hundred pounds, f. o. b. our works, half iron card extra. No charge for cutting to lengths of five feet or over. Specifications to be furnished, as such iron is required during the balance of the year. Terms, thirty days net from date of arrival of material.”

The reply was a general denial.

Counsel for. plaintiff has made a correct, terse statement of the facts of the case as disclosed by the record, and we will adopt that statement, which is substantially as follows:

The equitable issues growing out of the defendant’s cross-bill were tried by the court before the issues arising upon the plaintiff’s petition were submitted to a jury. On the trial of the issue raised by the defendant in its prayer for the reformation of the written contract, Abe Cook was the defendant’s only witness in chief. He testified that he understood that Mr. Fletcher was acting for plaintiff, and his impression was that Mr. Fletcher told him that defendant was not to be required to take out the whole amount of one thousand tons mentioned in this contract, but that he had to have the contract in that shape because it was the customary way of making them out. He also said that from the wording of the contract he thought it was dictated by his assistant, and that if the assistant did dictate' it then he must have gotten the instructions as to its terms from the witness. The original order showed that it had first been addressed to John Coles & Co., and that afterwards the name of this firm had been scratched ont and that of Moran Bolt and Nnt Mfg. Co. written in. Mr. Cook was in no way-certain as to- his conversations with Mr. Fletcher. The plaintiff showed that Mr. Fletcher was not in the employ of the plaintiff but was a broker working on commission; that he went to the St. Louis Car Co., learning that they were in the market for a large tonnage of iron, and Mr. Cook told him that they would place an order for five hundred tons. Mr. Fletcher went away and inquired and came hack to Mr. Cook and told him that he could not place the order for that amount and- that the tonnage would have to he increased. Although Mr. Cook demurred about giving an order for so much as a thousand tons, yet-he caused an order addressed to John Coles & Co. to be written ordering a thousand tons at $1.70. John Coles & Co. were mill men and Mr. Fletcher took it to them and they refused it. Other mills to which Mr. Fletcher submitted the order refused to fill it and finally he took it to Mr. Gorman, president of plaintiff, and the latter, after considering the matter, told Mr. Fletcher that if he would go back to the car company and have the order changed so as to be addressed to plaintiff they would take the business at $1.70. The market price at that time for that material was about $1.80. A few days after that defendant called plaintiff’s attention to the fact that that order had not been accepted and requested its acceptance in writing, and thereupon Mr. Gorman, oh behalf of plaintiff, wrote a letter formally accepting the order. After the contract was executed, the defendant specified out nearly five hundred tons of the material and every time a specification was given it purported to he at “price as per contract;” that there was very little specified out after the first of August, 1903, at which time the price of iron had declined' considerably, towards the end of the year reaching as low a point as $1.20'. During the fall the plaintiff on numerous occasions called the defendant's attention to the fact that they were not specifying out the iron according to the agreement, and urging upon them to do so and in several instances calling their attention to the exact amount still remaining to be specified before December 31, 1903.

The court found against the defendant and refused the relief asked by it for a reformation of the contract.

Afterwards, the cause came on for trial before a jury on the causes of action set out in the plaintiff’s petition. Qn that trial the only real matter in dispute was the second count of the petition, and on that there is no substantial difference between the witnesses for the plaintiff and those of the defendant. The evidence of all the witnesses was to the effect that a number of years ago the National Association of Iron Manufacturers got together and agreed,' upon what was known as a card. This card gave a base price for bars of iron within certain specified dimensions for the various shapes and a small extra charge per hundred pounds for sizes that varied from the specified base sizes. For example, all bar iron is manufactured in lengths of about sixteen feet but of various shapes, such as round, square, flat and oval. In square iron, for example, all pieces of dimensions between one inch square and If inches square would carry the base price which depends upon the market value of iron. Any size of square iron exceeding If inches square for instance would carry a small extra price, of, say, one-tenth of a cent per hundred pounds. This extra price was fixed and was specified upon the card and was. known as the “card extra.” So in round iron the base would be from one inch to If inches in diameter, and in the same way this National card gave the limits of the sizes for the “base” for all the shapes. Anything within the limits of these sizes, that is to say, which where base, bears a fixed price; for example, under the contract here in question, $1.70 per hundred pounds, and anything outside of the base sizes, carry in addition to the base an extra designated charge per hundred pounds for each size on the card, and in the contract between the parties to this suit these extra size^ if specified by the defendant were to carry out the whole “card extra” but only one-half of the extra priee designated on the card.

The evidence also showed that at the time thig contract was made, to-wit, June 3, 1903, the- plaintiff had in its warehouse about a thousand tons of iron, and thereafter made contracts with various mills for iron which under those contracts it was required to specify out to a certain extent each month, and some of which it was unable to specify out by December 31, 1903, as contracted,- because of the failure of the defendant to accept all the iron contracted for under the contract here in question. By specifying out is meant furnishing specifications or designations of the kind of iron desired for delivery. At the time the contract was made the market price of iron, that is to say, the base for iron bars, was $1.80 or $1.82!- per hundred pounds at St. Louis. Thereafter the price declined steadily during the balance of the year, 1903, and during the late spring of 1904. In the fall of 1903, when the priee of iron had gotten down to about $1.35, the defendant purchased iron of the same character as that covered by its contract with plaintiff from concerns other than plaintiff. On the 31st of December, 1903, the market price of iron delivered at the defendant’s work and under the terms set forth in the contract in question was $1.20 or $1.25. Towards the end of the year plaintiff on numerous occasions wrote and sent to defendant, requesting it to specify out iron under its contract and calling its attention in several communications to the exact amount still remaining to be specified before December 31, 1903. The iron was sold by Mr. Fletcher on commission basis and plaintiff paid him before the end of the year a total commission of $250', or twenty-five cents a ton. Between June 3,1903, and December 31, 1903, the total amount of iron specified out by the defendant and received by it under the contract in question was 9^1,550 pounds, out .of the total amount of two million pounds covered by the contract.

In February, 1904, the defendant tendered to plaintiff a check for $3,171.38 in full of all amounts due plaintiff. This check plaintiff returned since it simply covered the amount due for all the material received by the defendant under the contract and also for all bolts and nuts purchased by it during that time, but did not cover the loss sustained by plaintiff on account of the failure of the defendant to accept all the iron contracted for. During the time the contract was in existence, the defendant paid to plaintiff at different times various sums of money, all of which were credited to the defendant as a general credit without sjoecifying any particular account to which they should be applied, and the amount of the check tendered plaintiff was the balance then due plaintiff on the cause of action mentioned in the first and third counts of the petition after giving defendant credit for all sums which it had paid. The court instructed the jury that they might apply the cash payments made by the defendant to the first and third counts of the petition in such proportion as they thought proper from the evidence.

The court then instructed the jury as follows:

“1. The court instructs the jury that the written order numbered 22,917, given by defendant to the plaintiff, together with plaintiff’s letter of June 10, 1903, constituted a contract whereby the defendant became obligated and bound to accept from plaintiff one thousand net tons of bar iron according to specifications to be furnished by defendant to plaintiff during the time between June 3, 1903, and December 31, 1903, to be paid for by defendant at the rate of $1.70' for each one hundred pounds delivered at defendant’s works, with extra prices known to the trade as half iron card extra, in addition to said price of $1.70, and defendant to make no charge for cutting said bar iron into lengths specified.
“2. The court instructs the jury that in the first count of the plaintiff’s petition it sues for $16,981.77 as the contract price of 961,550 pounds of bar iron sold and delivered to defendant under the contract mentioned in the first instruction given you, and if you believe from the evidence that the plaintiff under said contract delivered to the defendant, according to specifications furnished it, certain bar iron, then yon will find in favor of the plaintiff and against the defendant on the first count of plaintiff’s petition, for the amount due plaintiff at the prices named in said contract as set forth in Instruction No. 1 for whatever amount of bar iron the plaintiff so delivered to the defendant under said contract less such sums as have been paid by the defendant to the plaintiff, and credited on said account, or which the jury under the other instructions given you credit thereon, and to> the amount, if any, thus found, you will add interest at the rate of six per cent per annum from the date plaintiff made demand on defendant for the amount, if any, so due it, if you find from the evidence such demand was made, up- to the present day, and if from the evidence you cannot determine the date of such demand, if any was made, then you will allow said interest from the date of the bringing of this suit, viz., February 17, 1904.
“3. The court instructs the jury that in the second count of the plaintiff’s petition the plaintiff sues the defendant for loss alleged to have been sustained by plaintiff because of the alleged failure of defendant to specify and' accept under the contract mentioned in the first instruction the whole amount of said one thousand net tons of bar iron,-and if the jury believe from the evidence that during the time between June 3, 1903, and December 31, 1903, inclusive, the defendant refused to furnish specifications for the total amount of said one thousand net tons of iron and had not received said amount from the plaintiff as provided in said contract, then the jury will find in favor of the plaintiff and against the defendant' on the second count of the' petition and assess the plaintiff’s damages thereon at such a sum as the jury believe from the evidence is the difference in value for the amount of iron which the defendant so refused to specify and accept under said contract between the price mentioned in said contract and the reasonable market value of such bar iron on the 31st day of December, 1903, if delivered and manufactured in the manner provided in said contract.
“4. The court instructs the jury that in the third count of the plaintiff’s petition the plaintiff sues the 'defendant for $3,514.84 as the value of certain bolts and nuts alleged by plaintiff to have been sold by it to defendant, and set forth in the itemized account attached to the petition and marked Exhibit B; and if you believe from the evidence that the plaintiff sold ' and delivered to the defendant said nuts and bolts or any part thereof, then you will find in favor of the plaintiff for the value of such nuts and bolts so sold and delivered to the plaintiff, less such sums, if any, as have been paid by plaintiff to defendant, and have been applied on said account, or which the jury under other instructions given you shall apply thereon and to the amount, if any, thus found you will add interest at the rate of six per cent per annum from the date plaintiff made demand on defendant for the amount, if any, so due it, if yon find from the evidence such demand was made, up to' the present day, and if from the evidence you cannot determine the date of such demand, if any was made, then you will allow said interest from the date of the bringing of this suit, viz., February 17, 1904.
“5. The court instructs the jury that if you believe from the evidence that between the 3d of June, 1903, and the 31st of December, 1903, the defendant paid to the plaintiff various sums of money without specifying to what the sums so paid should be applied, and that the plaintiff at the time it received said various payments did not apply same to any particular item or account, then the jury may distribute as credits the total amount of money so paid by defendant to plaintiff during said time, between the causes of action set forth in the first and third counts of plaintiff’s petition in such proportion as the jury from the evidence may think proper.
“And the court further instructs the jury that the plaintiff admits that the total amount it received from the defendant on account of the matters alleged in the first and third counts of plaintiff’s petition is the total sum of seventeen thousand three hundred and twenty-five dollars and twenty-three cents.
“6. The court further instructs the jury that they should in their verdict make a separate finding on each count of the plaintiff’s petition, and if on any account your finding includes interest, you should calculate, the amount of the interest and add to it the sum upon which the interest is calculated and render your verdict on such count for the total of both.
“7. The court instructs the jury that nine of your number have the power to find and return a verdiet, and if less than the whole of your number, but as many as nine, agree upon a verdict, the same should be returned as the verdict of the jury, in which event all of the jurors who concur in such verdict shall sign the same.
“If, however, all of the jurors concur in the verdict, your foreman alone may sign it.”

To the giving of which said instructions, as each and every thereof was given to the jury, the defendant at the time objected because such instructions were irregular, illegal and not proper instructions under the issues joined in this case; which said objection was overruled by the court, and to which action of the court the defendant at the time excepted.

Thereupon, the defendant requested the court to give the jury the following instruction, which the court refused, and the defendant duly saved its exceptions:

“The court instructs the jury that under the pleadings and evidence the plaintiff is not entitled to recover upon either the first or second counts of the petition, and they will accordingly return a verdict in favor of the defendant upon both the first and second counts of the petition.”

The case being then submitted, a verdict was rendered against the defendant for the sum of $182.43 on the first count; $4,673.03 on the second count, and $3,193.50 on the third count, or $8,048.96.

After unavailing motions in arrest and for new trial, this appeal was allowed.

I. "While the defendant pleads in its answer that Abe Cook, the person who signed the contract of purchase sued on, had no authority to execute it on its behalf, yet no such question is presented here in the brief of counsel for appellant; and for that reason we will dismiss it in the further consideration of the cause.

II. The first contention presented by the appellant for consideration is the action of the trial court in refusing- to reform the contract sued on, as asked for in its cross-bill.

That a court of equity has the authority to reform a written contract, where it is shown by the evidence that through fraud or by mistake it does not express the real contract entered into by the parties, cannot be denied; but the respondent contends that there is no evidence in this record which establishes any such fraud or mistake. After a careful reading of the entire evidence upon that subject, we have no hesitancy in saying that the evidence is wholly insufficient to sustain the charge of mistake as stated in the cross-bill. Mr. Cook was the only witness who- testified for appellant upon that subject, and he refused to state positively that the contract did not state the true intention of the parties thereto, but contented himself by testifying that he believed that the contract was to the effect that he was to take all or such part of the one thousand tons of iron as the appellant might need.

This evidence falls far short of the legal requirement in that regard. In equitable proceedings to reform a written contract on the ground of mistake, the burden of proof rests upon the party who asserts it, and he must establish its existence by clear and convincing evidence, and if he fail to do so-, the relief prayed will be denied. [State ex rel. v. Frank’s Admr., 51 Mo. 98; Judson v. Mullinax, 145 Mo. 630.]

In addition to pointing out the inherent weakness of the appellant’s evidence upon this question, we will add that the respondent’s evidence, which seems to be equally creditable, squarely contradicted that of the former and tends to prove that the contract, as written, expresses the true terms of the agreement as entered into, and that no mistake was made in reducing it to writing. Even though appellant’s evidence had been equally clear and positive as that of the respondent, still the relief asked would have to be denied, for the reason that in the absence of a preponderance of the evidence in its favor, the contract must stand as written; otherwise, written contracts would become worthless and not worth the paper upon which they are written.

We are, therefore, of the opinion that the court correctly found and adjudged that there was no mistake attending the execution of the contract in suit.

III. The real bone of contention in this case is lodged; in the second count of the petition, which asks for $5,000 damages against the appellant for refusing to receive all the iron purchased under the contract sued on.

The .plaintiff’s contention is, that by the contract it sold to defendant a specific quantity of bar iron, to be delivered upon call, at any time prior to January 1, 1904, for a certain price, and that defendant refused to receive all of the iron so purchased, and that, by reason thereof, plaintiff was damaged in the sum sued for.

The defendant, however, places an entirely different construction upon the contract, and contends that it is a wholly unilateral agreement depending upon its own will and volition, and otherwise void for want of mutuality.

In other words, defendant insists that the contract relates to “bar iron;” and that the testimony shows that the words “bar iron” cover very many different sizes and shapes of manufactured iron of varying prices; and that until made particular by specific orders no contract for “bar iron” is possible of understanding or fulfillment.

Instructions numbered one and three, given by the court, adopt plaintiff’s construction of the . contract, and repudiate defendant’s construction thereof. The defendant complains that those instructions are erroneous. In support of that contention the defendant cites and chiefly relies upon the case of Cold Blast Transp. Co. v. Kansas City Bolt & Nut Co., 114 Fed. 77.

The facts in that ease were as follows:

The plaintiff sued on an account for $5,573.43. “The defendant, in its answer, denied the averments ■of the petition, and pleaded a counter-claim for $5,-341.94, damages for failure of plaintiff to deliver to the defendant after June 1st, 1899, certain manufactured articles which it ordered and needed, and which the defendant alleged the plaintiff was hound to deliver under an alleged written contract,” made and entered into by and between them, which is as follows:
“Kansas City, Mo., Oct. 27, ’98.
“C. E. Ullman, Esq., Purchasing Agent, Cold Blast Transportation Co., S. & S. Packing Co.—
“Dear Sir: We offer to deliver at your works, during six months from November 1st, 1898, the following materials at the prices stated:
Bar iron, $1.20 flat delivered by car — $1.25 by wagon.
Soft steel bars, $1.25, car load — $1.30 by wagon.
Machine bolts, 80 and 10 % discount.
IT. S. Std. square nuts. $6.50 off.
U. S. Std. hex. nuts $7.40 off.
70 % off extras for tapping.
And will take in part payment No. 1 wrought scrap at $8.50 net ton, or arch bars and transoms at $10.50 net ton, or wrought iron car axles at $12.50 net ton, delivered your works; the quantity of scrap to be taken not to exceed the weight of materials sold to you.
Tours truly,
“R. C. Howes, Sec’y.
“With option of renewal for 6 months from June . 1st, 1899.
“The K. C. Bolt & Nut Co.,
“R. C. Howes, Sec’y.”
“On receipt of the proposition contained in this letter, the defendant accepted it; and between November 1, 1898, and June 1, 1899; it ordered, the plaintiff delivered, and the defendant paid for, nnts, bolts, and bars of the character specified in the letter, under the terms and at the prices there stated. Before June 1, 1899, the defendant notified the plaintiff that it exercised its option to renew the contract evidenced by the letter and acceptance. Between June 1, 1899; and December 1, 1899; the defendant ordered of the plaintiff nuts, bolts and bars of' the character described in the letter, which it needed in its business, which the plaintiff refused to deliver, and which the defendant was forced to purchase of others at prices which, in the aggregate, exceeded those specified in the alleged contract between the parties by $5,341.94. ’ ’

There was a judgment for the defendant, and the plaintiff sued out a writ of error. In the construction of that, contract in the United States Circuit Court of Appeals, Mr. Justice Sanborn said:

“The rules applicable to contracts of this class may be thus briefly stated: A contract for the future delivery of personal property is void, for, want of consideration and mutuality, if the quantity to be delivered is conditioned by the will, wish, or want of one of the parties; but it may be sustained if the quantity is ascertainable otherwise with reasonable certainty. An accepted offer to furnish or deliver such articles of personal property as shall be needed, required, or consumed by the established business of the acceptor during a limited time is binding, and may be enforced, because it contains the implied agreement of the acceptor to purchase all the articles that shall be required in conducting his business during this time from the party who makes the offer. [Wells v. Alexandre, 130 N. Y. 642, 29 N. E, 142, 15 L. R. A. 218; Minnesota Lumber Co. v. Whitebreast Coal Co. (Ill. Sup.), 43 N. E. 774, 31 L. R. A. 529; Parker v. Pettit, 43 N. J. Law 512.] But an accepted offer to sell or deliver articles at specified prices during a limited time in such amounts or quantities as the acceptor may-want or desire in Ms business, or without any statement of the amount or quantity, is without consideration and void, because the acceptor is not bound to want, desire, or take any of the articles mentioned. [Bailey v. Austrian, 19 Minn. 535 (Gil. 465); Tarbox v. Gotzian, 20 Minn. 139 (Gil. 122); Railroad v. Bagley, 60 Kan. 424, 433, 56 Pac. 759; Oil Co. v. Kirk, 15 C. C. A. 540, 68 Fed. 791; Crane v. C. Crane & Co., 45 C. C. A. 96, 105 Fed. 869.] Accepted orders for goods under such void contracts constitute sales of the goods thus ordered at the prices named in the contracts, but they do not validate the agreements as to articles wliich the one refuses to purchase, or the other refuses to sell or deliver, under the void contracts, because neither party is bound to take or deliver any amount or quantity of these articles thereunder. [Crane v. C. Crane & Co., 45 C. C. A. 96, 105 Fed. 869; Oil Co. v. Kirk, 15 C. C. A. 540, 68 Fed. 791; Campbell v. Lambert, 36 La. Ann. 35; Railroad v. Mitchell, 38 Tex. 85, 95; Ashcroft v. Butterworth, 136 Mass. 511, 514; Drake v. Vorse, 52 Iowa 417, 3 N. W. 465; Thayer v. Burchard, 99 Mass. 508, 520; Hoffmann v. Maffioli (Wis.), 80 N. W. 1032, 1035, 47 L. R. A. 427; Railroad v. Jones, 53 Ill. App. 431, 437; Rafolovitz v. Tobacco Co. (Sup.), 25 N. Y. Supp. 1036.]
“Tested by these rules, the accepted offer of October 27; 1898, was void in its inception for want of consideration and mutuality. No quantity of nuts, bolts, or bars was named in the offer or in the acceptance. The defendant was not bound to order, to receive or to pay for any of the articles named in the offer; and there was therefore no consideration for the offer itself, and no mutuality in the supposed agreement. The orders which were made and filled prior to June 1, 1899, constituted valid; contracts for the purchase and sale of the goods so ordered at the prices named in the offer. But they effected no agreement on the part of the defendant to order, or on the part of the plaintiff to deliver, any other goods under the offer, because the amount of goods whose delivery was contemplated was still unnamed. The defendant was not legally bound to order, to receive, or to take any articles which it had not ordered, so that there was still no consideration and no mutuality in the contract as to any articles which the defendant had not ordered, or which the plaintiff had not delivered. The refusal of the plaintiff to honor the orders of the defendant was therefore no breach of any valid contract, and formed no legal cause of action for the counterclaim. ’ ’

By reading the contract involved in the case just cited, it will be observed that there was no specified, quantity of nuts, bolts or bars named in the written offer of sale or in the acceptance of that offer, by the defendant ; and for that reason the court held the contract to he unilateral and void. But in discussing that case, the court clearly differentiated that contract from that class of contracts where the quantity sold is stated in the contract, or which may be made certain by the exercise of the provisions contained in the contract, or from what is necessarily implied from what is stated therein. In discussing that difference the court used this language: “An accepted offer to furnish or deliver such articles of personal property as- shall be needed, required, or consumed by the established business of the-acceptor during a limited time is binding, and may be enforced, because it contains the implied agreement of the acceptor to purchase all the articles that shall be required in conducting his business during this time from the party who makes the offer.”

In the case at bar the quantity sold is stated, ‘ ‘ 1000 net ton of bar iron at $1.70 per 100 lbs. F. O. B. our works, half card extra.” This provision of the contract clearly takes it out of the operation of the -law applicable to the class of cases mentioned by Mr. Justice Sanborn, in the case just cited.

The evidence both for plaintiff and defendant shows that the words “bar iron” and “half card extra” as used in the contract have reference to a certain base size and prices for bar iron. That is, bar iron is made in various sizes, and that there is a difference in the cost of making iron above the base size; and the words “card extra” refer to a list, of prices stated on a card,' which is well known to the trade, which states the extra charges for bar iron which is above the base size; and the words “half card extra” mean one-half of the extra charges stated on .the card of prices. "

The action of the parties to this contract in giving and filling orders thereunder has given precisely the same constructions to the terms “bar iron,” “specifications,” and “hhlf card extra” as were viven orally by the witnesses who testified on that subject. And it is well settled law, that oral evidence is admissible to prove the meaning of words used in a written contract where they have a special or technical meaning in the connection in which they are used, and where it is shown that all-the parties to the contract were familiar with the words and the sense in which they were employed.

In the case of Laclede Con. Co. v. Moss Tie Co., 185 Mo. l. c. 62, this court said: “ ‘Putting a construction upon a document means ascertaining the meaning of the sign or words made upon it, and their relation to facts. . . .' . In order to ascertain the relation of the words of a document to facts, every fact may he proved to which it refers, or may have been intended to- refer, or which identifies any person or thing mentioned in it. ’ . . . . The writing or contract should be read in the light of surrounding circumstances in order the more perfectly to understand the intent and meaning of the parties.” [See, also, Black River Lumber Co. v. Warner, 93 Mo. 374; Chapman v. Railroad, 146 Mo. 481; Rhodes v. Land & Lumber Co., 105 Mo. App. 279; Blair v. Corby, 37 Mo. 313.]

By applying to the contract in question the following language of this court in Laclede Con. Co. v. Moss Tie Co., supra, there can be no doubt but what both parties to the contract understood and knew the meaning thereof, to-wit: “ ‘Tell me what you have done under a deed, and I will tell you what that deed means.’ Another way of expressing the doctrine that the particular construction placed upon any instrument by both parties thereto is strong evidence of what they both intended it to mean.” [Patterson v. Camden, 25 Mo. l. c. 21.]

Under the light of this evidence and the authorities mentioned, we are unable to lend our concurrence to the contention of appellant, that the contract is unilateral and void for want of mutuality; but, upon the other hand, we are of the opinion that the contract is mutually binding on both parties thereto, and specifically states the quantity, kind and price of the goods sold, and it specifies the- time in which they were to be delivered.

And the refusal of the defendant to specify and accept the goods in conformity to the terms of the contract constituted a breach thereof and entitled the plaintiff to recover the consequential damages that flowed therefrom.

These conclusions are fully sustained by the following authorities: Laclede Con. Co. v. Moss Tie Co., supra; Green v. Higham, 161 Mo. 333; Black River Lumber Co. v. Warner, supra; Rhodes v. Land & Lumber Co., supra; Am. Linseed Co. v. Eberson, 104 S. W. 121; Nelson v. Hirsch & Sons Co., 102 Mo. App. 498; Hinckley v. Pittsburgh Steel Co., 121 U. S. 264.

Instructions numbered one and three given by the court on behalf of plaintiff and objected to by the defendant are predicated upon the law as above declared, and, according to the authorities above cited, they correctly told the jury what was the proper measure of damages in the case. [See Range Co. v. Mercantile Co., 120 Mo. App. 438.]

IV. The appellant concedes that it owes the respondent the sums of money sued for in the first and third counts of the petition, and, consequently, it assigns no error to the action of the trial court in regard to those counts.

Finding no error in the record, we are of the opinion that the judgment should be affirmed; and it is so ordered.

All concur; Lamm, J., in the result.


source: Caselaw Access Project

author: GrBAYES, J.

license: Public Domain

text:
    CORA A. KING v. WABASH RAILROAD COMPANY, Appellant.
    Division One,
    April 1, 1908.
    1. NEGLIGENCE: Place of Safety. If a pedestrian was in a place of safety by the side of a railroad track on which was a moving train, and suddenly placed himself, by inadvertence or otherwise, immediately in front of the moving train or tender, and was thereby injured, the defendant railroad company is not liable for his death. If the accident could not have been avoided, defendant is not liable, even though it failed to comply with the ordinance regulating the movement of trains..
    2. -: Violation of Ordinance: Proximate Cause. The violation of a city ordinance is negligence per se, and if no other facts occur in evidence to show that the injury to a pedestrian was occasioned otherwise than by such negligence, plaintiff will be entitled to recover. But where the evidence of the eye-witnesses tends to show that the violation of the ordinance was not the proximate cause of the accident, but that it was his sudden stepping on the track immediately in front of the moving train, then defendant is entitled to an instruction directing the jury to And for it, if they find such evidence to be true.

      3. -: -; -; Unavoidable If Known. The violation of an ordinance by a railroad company does not authorize a recovery in an action for negligence against it, where a person was injured by acts of his own, which, if known, could not have , been prevented by the company had it complied with the ordinance.
    4. - — : 'Place of Safety: Warning. The servants of a railroad company are not required to give warning to a pedestrian in a place of safety until he puts himself in a place of danger. And even then there is no negligence unless there is time and opportunity to make the warning of some avail, even though the servants are not in the place required by ordinance.
    5. -: Contributory: Humanitarian Doctrine. The humanitarian doctrine contemplates that contributory negligence is no bar to an action for personal injuries where the person injured is seen to be in a place of danger, or by the exercise of .ordinary care could have been seen to be in a place of danger, in time to have prevented the injury by the use of ordinary care. But where the facts of a case do not bring it within that rule, the doctrine of contributory negligence applies.
    Appeal from Daviess Circuit Court . — Hon. J. W. Alexander, Judge.
    Reversed and remanded’.

      J. L. Minnis and Franh P. Sebree for appellant.
    (1) The court committed error in refusing to give the demurrer to the evidence and defendant’s instruction in the nature of a demurrer to the evidence, (a) It was the act of the deceased in leaving a place of safety and getting against the tender or against the drive wheel of the engine that was. the proximate cause of the accident. Green v. Railroad, 192 Mo. 131; Koegel v. Railroad, 181 Mo. 379; Schmidt v. Railroad, 191 Mo. 215.; Mockowik v. Railroad, 196 Mo. 550'; Carrier v. Railroad, 175 Mo. 470; Holwerson v. Railroad, 157 Mo. 243. (h) There was no evidence of any negligence on the part of the defendant .that caused the accident. The deceased saw the engine back down by the switch, saw the brakeman turn the switch for the north side track, heard the brakeman warn him to look ont for the engine, and knew that the engine would back on the north side track. Under such circumstances the failure to comply with the ordinance, if there was such failure, was immaterial. Porter v. Railroad, 199 Mo. 82; Kreis v. Railroad, 148 Mo. 321; Hutchinson v. Railroad, 195 Mo. 546 ; Hayden v. Railroad, 124 Mo. 566'; Koegel v. Railroad, 181 Mo. 379; Mockowik v. Railroad, 196 MO'. 550. (c) The deceased was not in peril until he moved toward the railroad track and either stepped, stumbled or fell from a place of safety against the tender, or against the drive wheel of the engine, after the tender had passed him. In either case it was too late for the men in charge of the engine to have saved him, even if they had seen him after he was in danger. Yan Bach v. Railroad, 171 Mo. 338; Tanner v. Railroad, 161 Mo. 497; Evans v. Railroad, 178 Mo. 508; Koegel v. Railroad, 181 Mo. 379; Moore v. Railroad, 176 Mo. 528; Kreis v. Railroad, 148 Mo. 321; Lennon v. Railroad, 198 Mo. 525; Hyde v. Railroad, 110 Mo. 278; Boyd v. Railroad, 105 Mo. 380. (d) Under the statute the deceased was, for the purposes of this case, a trespasser in the defendant’s railroad yards and the defendant was not bound to look out for him. R. S. 1899, sec. 1105; Ryan v. Railroad, 88 Mo. 392; Barker v. Railroad, 98 Mo. 50; Hyde v. Railroad, 110 Mo. 272; Sullivan on Stat. Construction, secs. 253, 289; Beach on Contributory Negligence (3 Ed.), sec. 203; 3 Elliott on Railroads (1 Ed.), secs. 1253, 1254; 2 Thompson on Negligence, secs. 1706 and 1711; O’Donnell v. Railroad, 197 Mo. 113; Carr v. Railroad, 195 Mo. 297; Chaney v. Railroad, 176 Mo. 598; Weaker v. Railroad, 169 Mo. 592; Feeback v. Railroad, 167 Mo. 206; Berry v. Railroad, 124 Mo. 223; Frye v. Railroad, 200 Mo! 377. (2) The court committed error in refusing instruction 3 requested by defendant. This instruction declared that if the deceased was north of the track and after the tender had passed hy him, he moved np close to the engine and was struck by the engine and killed, then he was guilty of negligence and plaintiff could not recover. Koegel v. Railroad, 181 Mo. 379; Lennon v. Railroad, 198 Mo. 514; Kreis v. Railroad, 148 Mo. 321; Evans v. Railroad, 178 Mo. 508; Van Bach v. Railroad, 171 Mo. 338. . (3) The court committed error in refusing instruction 4 requested by ' the defendant. It declared that if the deceased was walking north of the track and when the tender approached near him he stepped toward the track, and was immediately struck by the tender and killed, then his death was due to his own negligence, and the verdict must be for the defendant.

      Henry L. Eads, E. M. Harder and A. G. Knight for respondent.
    (1) Contributory negligence does not bar a recovery where the employees in charge of an engine might reasonably expect the presence of persons on the track and either saw such person, or hy the exercise of ordinary care might have seen him and averted the injury. Riska v. Railroad, 180 Mo. 168 ; Fearons v. Railroad, 180 Mo. 208; Scullin v.' Railroad, 184 Mo. 695; Eppstein v. Railroad, 197 Mo. 720. The facts and circumstances induced the deceased to believe that the engine would proceed down the main track, which he left as dangerous and got over on to the side track, believing it a place of safety, and while walking down this track the employees of defendant in charge of the engine, in grossest violation of law, ran the engine over on to the side track, and at an unlawful rate of speed, and without any warning ran the tender against the deceased, knocked him down and cut him in two. And under the authorities the court did not' err in overruling defendant’s instruction in the nature of a demurrer to the evidence. (2) The deceased was presumed to' be in the exercise of due care. Lynch v. Eailroad, 112 'Mo. 433; Mathews on Presumptive Ev., 1; Mockowik v. Eailroad, 196 Mo. 571; Hutchison v. Eailroad, 161 Mo. 254; Biska v. Eailroad, 180 Mo. 168; Weller v. Eailroad, 164 Mo. 180; Sullivan v. Eailroad, 117 Mo. 214. (3) The defense of contributory negligence is an affirmative defense, the burden of which rests on the defendant, and if it wanted such an instruction, it should have asked it. Not having done so, it cannot now be heard to complain. Brown v. Eailroad, 108 Mo. App. 315 ; Bank v. Powers, 102 Mo. App. 415; Montgomery v. Eailroad, 181 Mo. 477. (4) Instructions 3 and 4 asked by defendant were properly refused. Mockowik v. Eailroad, 196 Mo. 571; Morgan v. Eailroad, 159 Mo. 275; Kellny v. Eailroad, 101 Mo. 74.
   GrBAYES, J.

— Plaintiff for a short while, seven months, was the widow of one S. J. E. Turner, who was killed by one of the defendant’s engines. After the institution of this suit, but prior to the trial, she married one King. She had judgment below for the statutory penalty of $5,000, and defendant appealed. The death of said Turner occurred within the corporate limits of Pattonsburg,-Missouri. Plaintiff pleads that there was, at the point where the accident occurred, a continuous user of defendant’s right of way and tracks by pedestrians, of which said user the defendant had full knowledge, and this the evidence tended to prove. The petition further pleads an ordinance of the city to this effect:

“Sec. 1. It shall-not be lawful, within the limits of the city of Elm Elat, for any car, cars or locomotives propelled by steam power, to run at a rate of speed exceeding six miles per hour.

“Sec. 2. It shall not be lawful, within the limits of the city of Elm Flat, for any car, cars or" locomotives propelled by steam power, to obstruct any street crossing by standing thereon for longer than ten minutes. And when moving, the bell of the engine shall be constantly sounded within said limits, and if any freight car, cars or locomotives propelled by steam power, be backing within said limits, a man shall be stationed at the top of the car at the end fartherest from the engine to give danger signals. No freight train shall at any time be moved within the city limits without it be well manned with experienced brakemen at their posts, who shall be so stationed as to see the danger signals and hear the signals from the engine. The steam whistle of danger shall, in no case, be sounded in giving the usual signal for running trains. ’ ’

It was shown that the city of Elm Flat by proper steps became Pattonsburg. It was claimed that deceased met his death by a backing engine which was run at a rate of speed in excess of the speed limit, and said train was run without ringing the bell and without being manned as required by the ordinance and without having a man stationed on the car “fartherest from the engine to give danger signals.” The accident occurred about three o’clock in the afternoon. Deceased, who lived north and east'of the city, was coming to town to make some purchases, among other things, some coal oil. For this oil he had a half gallon bottle which he was carrying in his hand. 'We mention this now, for it becomes material later. In Pattonsburg, the main track of defendant’s railway runs east and west. There were two side or switch tracks, one to the north and one to the south of this main track and parallel therewith. The train in question had arrived from the west. On the north switch track were the stock yards or stock pens. The switch stand or connection of this south switch track with the main track was some five hundred feet east of the depot, and that of the north switch track some four hundred and fifty feet east of the depot, which would make the connection of the north switch track with the main line some fifty feet west of the connection of the south switch track with the main line. Such, was the situation to the east of the depot, and this is the only situation material to the issues of this case. It was in this vicinity that the evidence tended to show a continuous user over and across the tracks of defendant by pedestrians. The main portion of the town was to the south of these tracks, but there were some residences on the north side thereof, and those residents as well as people from the country continuously crossed these tracks. At one of the foot paths across them they had even constructed and maintained a foot-bridge across the barrow pit. When this freight train came in from the west, the engine was cut loose from the train, and was run down to the east of the switch stand for the north switch track, for the purpose of backing in upon this north track to get a car at the stock yards, which yards were to the west of and near the depot. Whilst this engine was standing there, with the switchman at the switch stand, the deceased came up and- passed along the-south side of the engine, and passing in front or to the west of the tender went on across the tracks north. As he did so the switchman called to him to look out for the engine. The train crew-claimed to have seen him no more. There were two eye-witnesses to the accident. That is, there were but two who saw the engine strike deceased. Their exact testimony becomes important. Mrs. Phoebe Jane Miller, who lived in one of the houses to the north of the railroad tracks and who observed deceased as he passed by the tender of the engine and also observed the brakeman setting the switch, said:

“Q. When he walked across the track and gave this signal, where was Mr. Turner ? A. He was coming across here.

“Q. He was coming across? A. He was coming across to get on the north side of the railroad, just, as fast as he could walk.

“Q. And.they passed one another pretty close together? A. Yes, sir; the man that turned the switch went behind Mr. Turner, and he just come on and got across.

“Q. Did you see Mr. Turner before he started across the track? A. No, he walked down, was going towards town and seen the train was going to start out pretty soon and he came across over here on the north side.

“Q. You did not answer my question, you did not understand me; I want to get the point that Mr. Turner was when you first saw him? A. He was right over, opposite of the engine, coming on, as I tell you.

“Q. He come right by that engine? A. Yes,, sir; when it was standing still.

■' ‘ Q. And he come up there and he an<i tire brakeman met one another about the time the engineer or the brakeman gave the signal to the engineer? A. Yes, sir.

“Q. Mr. Turner was across the track? A. Yes, sir.

“Q. West of this switch post? A. Five or six steps.

“Q. And at that point the engine was moving back, the tender? A. Yes, sir.

“Q. And what part now struck him? A. I did not see anything strike him at all, only it just looked like he was kind of daunted or something and started to fall, and this big wheel catched him, as I say, right across his bowels, turned him heels over head, till it dragged him over and throwed him down and killed him.

“Q. Yon know this drive rod between the big wheels? A. Yes, sir.

“Q. Was it that that seemed to get hold of him? A. It was the one right in the middle of the big wheel.

££Q. His body was on the outside of the big wheel while it was turning over? A. Yes, sir.

‘ Q. And the tender had passed clear by him? A.. Yes, sir.

££ Q. At the time you saw this wheel catch hold of him? A. Yes, sir; the tender had passed him.

££Q. The tender had passed clear by him? A. Yes, sir.

£ £ Q. Did you notice how many of those big wheels there was on the engine? A. I don’t hardly recollect.

££Q. Was there two or three? A. I don’t recollect, I believe two.

££Q. Was it the one next to the tender or the one back of that that had a hold of him? A. The one that was next to the tender.

££Q. You said something about his having a bottle on his arm? A. Yes, sir.

“Q. Which arm was that bottle on? A. He had it in this hand.

££Q. In his left hand? A. Yes, sir.

££ Q. And he was going west ? A. And I think he had the rope round his wrist.

££ Q. You think the rope was round his wrist? A. Yes, sir.

££Q. Don’t you think that drive rod or that wheel caught that bottle, as he was walking along and that is what turned him round? A. Yes, sir; I think that is kind of what daunted him, and catched him.

££Q. You think that also caught that bottle and rope round his hand? A. Yes, sir.

“Q. And wound him up in it? A. Yes, sir; wound him up and took him right on.

“Q. That is your idea of how the accident happened? A. Yes, sir.”

Powell Royston, another witness, among’ other things said:

“ Q. Mr. Royston, this accident, resulting in the death of Mr. Turner, state what you know and saw of that? A. Well, on the 17th of August last, about three o’clock it was, I believe, I seen Mr. Turner coming down the railroad track from the east; first saw him close to the car house, where the section men put their tools and the like; at this time there was a train in on the main track, and Mr. Turner was coming down west, and the engine had got loose from the train, and coming up. on the main line and back on the side track with a. car of stock. Mr. Turner was walking along when I first saw him, on the south side of the road, as. well as I could diseern it; I was laying in a hammock across from the railroad, and just as the engine went past, it seemed like he come across on the north side of the road, just opposite the other side, of where the switch was open, as well as I could tell, and he was walking along there, and the brakeman opened the switch, and the engine come along back, and Mr. Turner was walking west on the north side of the track, and seemed like when the engine run about the length of two rails, probably more, seemed like Mr. Turner made a step kind of over towards the track, or stumbled over or kind of stepped over, as he stepped over seemed like the tender catched him and knocked him down; that was about one rail west of the high switch; and it land of picked him up, it seemed like, and dragged him along; there was blood about six foot from the east rail, on the rail; it dragged him along till it got all the length of two rails; and his foot sunk down into the guard rail, and it catched there; he laid right hack from the track with this leg mangled np here; ran in here and cnt here till yon could see his liver; I ran to him, and. he raised his arm np after I got to him.

“Q. Did yon see anything ahont a bottle there? A. Yes, sir, he had a glass bottle, carrying along with him; that bottle was broke where the first blood was put on the rail.

In opposition to this testimony Leslie Pell, a witness, said:

“Q. Going east? .A. Well, I was not going when the train hit him, I was standing still when the train hit him, watching the train.

“Q. Standing still watching the train when it hit him? A. Yes, sir.

“Q. And yon did not see it hit him? A. No, sir.

“Q. How far was yon standing from the track? A. I was standing right against the track.

“Q. Right against the track? A. . Yes, sir.

“Q. On the north side? A. ' Yes, sir.

“Q. And looking right at the train? A. Yes, sir.

“By the Court: Do yon mean- the train or engine? A. The engine.

“Q. Looking right at it? A. Yes, sir.

“Q. And never saw it hit him? A. No, sir.

“Q. Had yon seen him at all? A. Yes, sir.

“Q. Where? A. Walking down the track towards the town.

“Q. Walking down the track towards the town? A. Yes, sir.

“Q. And still yon never saw the engine hit him? A. No, sir.

“Q. Whereabouts did he cross the track? A. He did not cross it, he was walking down the track.

“Q. Whereabouts was he walking down the track? A. He was walking in the main track till he' come to the switch and' turned off on the switch. ’ ’

The brakeman testified among other things, as follows :

“Q. And from the time Mr. Turner crossed' the track, where he went you don’t know? A. No.

“Q. You never saw him, nor did you look for him any more, till they stopped you and you learned he had been run over and killed. A. I did not.

“Q. Where was his body run over; at what part of his body? A. The left part, the left leg and the main part of his trunk; left side and left arm was-severed.

“Q. Did you look to see where the blood was;; was it on the wheels of your tender? A. Yes, sir.

“Q. Where was it; which wheel? A. On the tank wheels; the two rear tank wheels, on the north-side of the tank.

Q. It was on the first luheel going loest? A. Yes,, sir. .

“Q. That is where the blood was? A. The north side of the tank.

“Q. And on the first wheels of the tank going-west? A. Yes, sir.

“Q. That is what had run over his body? A. I suppose it was.

“Q. You could se'e the blood along there? A. Yes, sir.

“Q. And you did observe it both on the track and this wheel? A. I did not look at the track; I looked at the engine.

“Q. And there it was on the tender and wheels? A. On the tender and wheels; yes, sir. ’ ’

There was also some evidence of a part of this broken coal oil bottle being found between the rails of the track. Complaint is made by the defendant as to certain evidence admitted over its protest, as well as to certain instructions given and refused by the court. With the view we have of the law of the case a more complete statement is not required. The complaints above will be noted in the course of the opinion.

I. The defendant complains of the action of the trial court in refusing to give its instructions numbered 3 and 4. These instructions read:

“3. The court instructs the jury that if they believe from the evidence that the deceased, Turner, was walking north of the north side track, and that the tender had passed him, and that as the engine was passing him he moved closer to the engine and was thereby struck by the wheels of the engine and was killed, then his death was due to his own carelessness and the plaintiff, Mrs. Cora King, is not entitled to recover in this action and your verdict must be for the defendant.

“4. The jury are instructed that if they believe from the evidence that the deceased was walking north of the north side track and as the tender approached near him he stepped in front of the tender and was immediately struck by it and killed, then his death was due to his own negligence and the plaintiff, Mrs. King, is not entitled to recover in this case, and you will find a verdict for the defendant.”

To our mind this complaint is a just one. If the deceased was in a place of safety, and placed himself, by inadvertence or otherwise, immediately in front of a moving train or engine, and was thereby injured, the defendant is not liable. In other words, if the conduct of deceased, in a place of safety, was such that he put himself so suddenly in a place of danger, that the accident could not have been avoided, even if the defendant had complied with the ordinance in the strictest terms, then the plaintiff cannot recover on the bald proposition that the defendant had not complied with, the ordinance. In snch case the failure to comply with the ordinance would not he the proximate' cause of the injury. The cause of the injury would be the inadvertent act of deceased in taldng the step' from a place of safety to one of danger. The evidence tends to show that this change was but the work of an instant, thereby furnishing no time for warning. [Kreis v. Railroad, 148 Mo. l. c. 328, and cases cited.]

The testimony of the two eyewitnesses would’ fully authorize these two instructions. The fact that there might have been countervailing testimony does not destroy the right of the defendant to have the theory of the ease, as shown by this testimony, properly submitted to the jury. Whilst the violation of a city ordinance is denominated negligence per se, and if no other facts appear to show that the injury was occasioned otherwise than by such negligence, a plaintiff would be entitled to recover, yet where the evidence of the eye-witnesses tends to show that the violation of the ordinance was not the proximate cause of the injury, then a different proposition is presented. Because an ordinance has been violated does not authorize a recovery, where a person was injured by acts of his own, which, if known, could not have been prevented by the defendant, had it complied with the ordinance. Under the testimony of these two witnesses had there been a dozen men on this tender to warn plaintiff, there would have been no interim in which to make such warning effective. Under their testimony the transit from a place of safety to a place of danger was accomplished by a single step — the act of a moment. This act was that of the deceased. He being in a place of safety, to the north of the track, even if the servants of defendant had been placed as the ordinance required, they would not have been required to give warning until he put himself in a place of danger, and there would have been no negligence unless there was time and opportunity to make the warning of some avail, and such servants with such time and opportunity failed to give it. Nor is the defendant the more liable because of the absence of its servants, unless by their presence, and a strict compliance with the ordinance duty, the injury could have been averted. Then and only then would the conduct of defendant have become the proximate cause of the injury. These two instructions properly presented a vital issue in this ease. The one was based upon the testimony of one eyewitness and the other upon the testimony of another. Regardless of all other facts in the case, the defendant had the right to have this theory of the case submitted, and the refusal of these instructions was error.

II. Complaints are urged against the several instructions given for plaintiff. In SO' far as these instructions overlook and fail to recognize the doctrines’ hereinabove announced they are in error. Specific mention of each of them would be superfluous. And in so far as they utterly ignore the question of contributory negligence, if they do so ignore it, they are in error. The humanitarian doctrine, recognized by this court, .as elsewhere, contemplates that contributory negligence is no bar to an action where the party injured is found in a place of danger, or by the exercise of ordinary care could have been found in a place of danger, in time to have prevented the accident and injury by the use of ordinary care. But where the facts of the ease do not bring it within that rule, the doctrine of contributory negligence is not further disturbed. What we have said in the preceding paragraph will enable the plaintiff to properly redraft her instructions.

III. It is urged, and with much force, that a demurrer to the testimony should have been sustained. It is urged that deceased was notified by the brakeman, whilst the brakeman was at the switch stand, to look out for the engine. That with this notice he •deliberately walked up the north switch track and was injured, and therefore he cannot recover. There is much force in the contention. [Porter v. Railroad, 199 Mo. 82.] It should be remembered that the engine was on the main track when this warning was given. But as we see this case there is slight evidence that deceased was in the track when he was struck, i. e., the evidence of Pell, supra, and the fact that glass was found between the rails. Also the •evidence of the brakeman as to blood on the north wheel of the tender, and the front wheel going west. This testimony and these circumstances are extremely weak, in the face of the testimony of the two eye-witnesses who saw the accident. It is hardly such testimony as would authorize the submission of the case to the jury. Pell is not as definite as he might be as to the location of the deceased. The case seems to have been tried below, judging from the instructions given and refused, on the theory that the mere failure of defendant to comply with an ordinance made out a case for the plaintiff. This theory was wrong, ■and what might be shown upon a re-trial, when tried upon a proper theory we can not surmise. As lawyers, we all know that when a trial court takes a certain theory of a case, pertinent evidence is ofttimes omitted. Such may have been the circumstances of this case. If counsel and court had been trying this •case upon the proper theory, and the record before us was the result, we would promptly say that the demurrer to the evidence should have been sustained. However, we are not satisfied to reverse this case absolutely, for the reason that when tried upon the proper theory the evidence may be more fully developed. This we leave to the trial court. If nothing very much more tangible appears than is found in this record, the case should not be submitted to the jury.

IV. "We are not impressed; with the objection urged as to the testimony of the witnesses as to the rate of speed the engine was being run. It is true that the witnesses did not see the engine at the time and place of the accident, but saw it at a point further west upon the same trip. This alone would have been insufficient. But the testimony of the brakeman was to the effect that it had the same rate of speed throughout the trip from the switch stand to the stock yards, which taken with the other testimony renders the latter competent. The two must be and were no doubt considered together. We say this much in view of the fact that the case must be retried.

For the reason aforesaid this cause is reversed and remanded to be tried in accordance with the views herein expressed.

Lamm, J., concurs in toto; Valliant, P. J., and Woodson, J., concur in the result and all of the opinion except that portion of paragraph three which comments upon the sufficiency of the evidence in the present record to authorize the submission of the case to the jury. They are of opinion that the evidence in the present record was sufficient to authorize the trial court to submit the case to the jury upon proper instructions.