author: ROY, C.

text:
    HOMER STRICKLEN, by his Nest Friend, Appellant, v. COMBE PRINTING COMPANY.
    Division Two,
    April 8, 1913.
    1. INSTRUCTIONS: Refused: Point Already Covered. When given instructions fully cover a proposition, it is not error to refuse another instruction on the same subject, evei^ though it he a corect statement of the law.
    2. —--: -: Ignoring Evidence. Plaintiffs finger was crushed in a box-pasting machine and he testified that he had to keep his fingers between the parts of the machine in order to hold the parts of the box. in place until iust before the moment of closing the machine- — -that he “had to be pretty quick to get his hand out in time.” Held, that an instruction that “if the jury believe . . . both parts of the machine were stationary when the plaintiff was required to insert the box therein, and after inserting the box form . . . the plaintiff . . . caused the lower part of said machine to move up against the upper part, he was not required to work between the stationary and traversing parts of said machine while in motion,” was erroneous and properly refused, because it ignored the foregoing evidence.
    3. NEGLIGENCE: Labor Inspection Law: Traversing Part of Machine: Sec. 6434, R. S. 1899. Where one part of a machine closes against the face of another part it is a traversing part of the machine, and is within the terms of Sec. 6434, R. S. 1899, which provides that no minor or woman shall be required to work between the fixed and traversing parts of any machine, while it is in motion.
    4. -: -: -: -: Instruction: Refused: Ignoring Evidence. Where plaintiff testified in effect that it was necessary for him to- put his fingers between the parts of the machine, and also testified that he was instructed to do so, an instruction was erroneous and whs properly refused, which read, in part, “it cannot be inferred by you that any operator of the machine was required to put his hands or fingers between the jaws while the same were performing their function in uniting the parts of the boxes. Such a requirement would be inconsistent with the use of the machine and a wanton disregard of the safety of the 'operator, and of this there is no charge or evidence.”
    5. -: -: Sec. 6434, R. S. 1899: Not Repealed by Child' Labor Law of 1907. Sec. 6434, R. S. 1899, providing that no minor or woman shall be required to work between the fixed and traversing parts of a machine while it is in motion, was not repealed by the “Child Labor Act” of 1907 (Laws 1907, p. 86).
    6. -: -: -: Constitutional Question. Nor was Sec. 6434, it. S. 1899, unconstitutional in that the title to the act contained more than One subject or in that the subject of that section was not expressed in the title to the act.
    Appeal from Buchanan Circuit Court. — lion. Henry M. Barney, Judge.
    Eeveesed and bemanded {with directions).

      John 8. Boyer for appellant.
    (1) Section 6434, in so far as it applies to minors under the age of 16 years, was not repealed either expressly or by implication by the Act of March 20, 1907. Laws 1907, pi 86. (2) The general repealing clause of the Act of 1907 is a mere formal provision which adds nothing to the act itself, and if there is any repeal effected it is by implication. 26 Am. & Eng. Ency. Law (2 Ed.), p. 719; State v. Kessels, 120 Mo. App. 244. (3) Eepeals by implication are not favored. They will not be indulged unless it is manifest that the Legislature so intended, or unless the two acts are positively repugnant and wholly inconsistent. Manlier v. Faulhaber, 94 Mo. 430; State ex rel. v. Slover, 113 Mo. 208; State ex rel. v. Walbridge, 119 Mo. 383; Mc-G-rew v. Eailroad, 177 Mo. 533; Evans v. McFarland, 186 Mo. 703; Yall v. G-illham, 187 Mo. 405; State ex rel. v. Wilder, 197 Mo. 35; State ex rel. v. Wells, 210 Mo. 620; Lamar v. Adams, 90 Mo. App. 42; Donnell y. Lee, 101 Mo. App. 191; 26 Am. & Eng. Ency. Law (2 Ed.), pp. 721, 725-728. (4) Sec. 6434, E. S. 1899, was, at the 1909 session of the Legislature, repealed and re-enacted in modified form with a prohibition against minors under 16 years of age being required to work between the fixed and traversing or the traversing parts of any machine while it is in motion by the action of mechanical power. Laws 1909, p. 502.

      ■Vinton Pike and O. G. Mosman for respondent.
    (1) Section 6434 cannot stand with section 9 of the Child Labor Act (Laws 1907, pp. 86, 89.) The Legislature with great particularity prescribed the prohibited occupations, and none of them include working near or with a box form header. The act must be “understood as repealing all acts in relation to all cases which are provided for by the repealing act.” Payne v. Connor, 3 Bibb, 180. The new act expressly repeals all former legislation not in conformity with the new. It is plain that the Legislature intended to cover by the new act the whole subject of employment of minors under 16 in factories. Meriweather v. Love, 167 Mo. 514; Ogden v. Witherspoon, Fed. Cas. 1061; Ex parte Benjamin, 4 Pac. 23; County v. Railroad, 6 Pac. 744; Slate v. Studt, 31 Kan. 245; U. S. v. Claflin, 97 U. S. 546; Koons v. Cluggish, 34 N. E. 651; Curtis v. Grill, 34 Conn. 49; Webb v. Baird, 8 Ind. 13. (2) Section 6434 has been a puzzle to the courts. The Kansas City Court of Appeals has construed it to mean that working nearby, or with, any machine, while in motion, etc., is being required to work between the “fixed or traversing parts,” etc. Nairn v. Biscuit Co., 120 Mo. App. 144; Peters v. Gille, 133 Mo. App. 412. While the Federal Court of Appeals has held the contrary. Candy Co. v. Miller, 160 Fed. 51; Lead Co. v. Swyers, 161 Fed. 687. The section has since been “done over.” R. S. 1909, sec. 7829.
   ROY, C.

This suit was brought under section 6434, Revised Statutes 1899 (7829, R. S. 1909), which provides that “no minor or woman shall be required to . . . work between the fixed and traversing parts of any machine, while .g mo£-o:u ^y £he actioii of steam, water or other mechanical power.”

The plaintiff got a verdict for $500, which, on motion for a new trial, was set aside and the plaintiff has appealed from the order granting a new trial.

The petition alleges that plaintiff is over fourteen and under twenty-one years of age. It alleges that defendant was in the business of making pasteboard boxes and in other lines of business, and that it required plaintiff while in its employ to work between the fixed and traversing parts of a machine used in pressing and pasting together the ends, of such boxes.

The answer contains a general denial and a plea of contributory negligence without alleging what that contributory negligence was. It also raised the point that the section under which the suit is brought is unconstitutional for the reason that the title to the act of which that section was a part contains more than one subject, and that the subject of that section is not clearly expressed in the title of said act; and, further, that it abridges the privileges and immunities of citizens of the United States, and denies to the defendant the equal protection of the laws.

The evidence shows that the injury occurred on July 16, 1908, and that the plaintiff became sixteen years old in September following. He began work Monday at noon, and the accident occurred on the following Saturday. The upper part of the machine was fixed and the lower part dropped down one or two inches to allow the end of the box to be inserted and then closed up against the upper part of the machine in order to press and paste the parts of the end of the box together. As to whether it was necessary for the operator to insert his fingers between the fixed and moving parts of the machine, the evidence is in conflict ; that for the plaintiff tending to show that it was necessary, and that for the defendant showing the contrary. Plaintiff testified that defendant’s foreman directed him to so insert his fingers in order to hold the parts of the box in position. The foreman testified that he gave no such direction. Plaintiff testified that he had to he pretty quick to get his hand out in time. Plaintiff’s forefinger was caught, and the end of it mashed off by the machinery.

At the request of the defendant the court gave the following instructions:

“If the jury believe from the evidence in this case that the defendant or its foreman did not require the' plaintiff, Homer Stricklen, to put his hand or fingers between the upper and lower jaws of the header described in evidence, and of which the picture shown you is admitted to be a correct representation, while he was at work upon or with said machine, you will return a verdict for the defendant. ’ ’
“If you believe from the evidence that the plaintiff was instructed by the defendant or its foreman, how to operate said heading machine in making the boxes described in evidence, and that the said work and said instructions and directions did not require him to put his hand or fingers between the jaws of the heading machine, you will return a verdict for the defendant.”

The following instructions asked by defendant were refused:

“5. If the jury believe from the evidence that the machine about which the plaintiff was at work consisted of two parts, the upper fixed, and the lower part movable by means of electric or mechanical power, and that the said parts of said machine were used as they come together to press and fasten the ends of box forms, and that the distance between said parts of said machine when open was about an inch or two, and that the plaintiff in performing his work was required to take a box form in his hands at a distance from the end of said box form, and place the end to be pressed in between the parts of said machine aforesaid; in which position his hands would be several inches below the lower and movable parts of said machine, he was not required to work between the movable parts of said machine. ’ ’
“6. If the jury believe from the evidence that both parts of the machine in question were stationary when the plaintiff was required to insert the box form therein, and after inserting the box form between said parts of said machine, the plaintiff by means of a mechanical appliance caused the lower part of said machine to move up against the upper part, he was not required to work between the stationary and traversing parts of said machine while in motion. ’ ’
“13. The plaintiff was not required to work for defendant between the fixed or traversing parts of the machine in question, nor between the fixed parts thereof, or the traversing parts while the machine was in motion. The fixed part of said machine was the upper jaw of the ‘header;’ the lower jaw or moving part did not traverse or cross said upper or fixed part. The case of plaintiff-is not within the regulation of the statute relied on by plaintiff.”
“14. It was not dangerous to life and limb for anyone to work in front of, near to or with said machine. The jaws of the heading machine being designed and used to press together the parts of the boxes in their manufacture, it cannot be inferred by you that any operator of the machine was required to put his hands or fingers between the jaws while the same were performing their function in uniting the parts of the boxes. Such a requirement would be inconsistent with the use of the machine and a wanton disregard of the safety of the operator, and of this there is no charge or evidence.”

The new trial was granted on the ground that the section of the statutes under which the- suit was brought had been repealed by the Act of 1907.

I. Instractions 8 and 9 given for the defendant fully covered the point as to whether plaintiff was required to work between the fixed and traversing parts of the machine, and the refusal of the fifth instruction asked by defendant on the same subject was not error. When the given instructions fully cover a proposition, it is not error to refuse another instruction on the same subject, even though it be a correct proposition of law.

II.The court properly refused defendant’s sixth instruction. Plaintiff’s evidence tended to show that it was necessary to- keep his fingers between the parts of the machine in order to hold the parts of the box in place until just before the moment of closing the machine. He stated that he “had to be pretty quick to get his hand out in time.” The instruction ignored that evidence and was properly refused.

III. The defendant’s refused instruction 13 appears to be based upon the idea that as the lower part of the machine closed up against the upper part, it did not traverse that part. A traverse is defined to be “something that thwarts, crosses or obstructs,” and to traverse is “to obstruct, to cross by way of opposition.” We conclude that where one part of a machine closes against"the face of another part it is a traversing part of the machine, and is within the terms of the statute. We do not mean to say that the statute does not cover a machine whose parts pass each other in actual touch or close proximity, but we do hold that it covers a machine whose parts close against each other.

IV.Defendant’s fourteenth refused instruction ignored the evidence in the case. Plaintiff in effect testified that it was necessary for him to put his fingers between the parts of the machine, and also testified that he was instructed to do so.

V. Appellant contends that the section on which this action is based was repealed by the “Child Labor Act” (Laws 1907, p. 86 et seq.). Section 9 of that act provides that “no child nnder the age of sixteen years shall be employed to adjust any belt to any machinery or to oil or assist in oiling, wiping or cleaning machinery; nor shall any such child operate or assist in operating circular or band saws, wood shapers,” etc. (setting out a long list of things not permitted). That list does not in specific words include the act of working between the fixed and traversing parts of machinery. The section nnder which the suit is brought is a part of the “Inspection Act” of 1891 providing for the “Health and Safety of Employees” (Laws 1891, p. 159).

Both the “Child Labor Act” and the “Inspection Act” are embodied in the last revision of the statutes.

A casual reading of the two acts will show that the Act of 1907 was not intended to supplant entirely the Act of 1891, for it does not purport to regulate anything but child labor; whereas, the other act regulates the labor of adults as well as of minors. The only express words of repeal in the Act of 1907 are as follows: “Sec. 13. All acts or parts of acts not in conformity with the provisions of this act are hereby repealed.” The words “not in conformity with” mean the same thing as the words “in conflict with.” There is no conflict or lack of conformity between the two-sections. If there has been a repeal, then it is one by implication. “"Where a statute repeals all former laws within its purview, the intention is obvious and is-readily recognized to sweep away all existing laws upon the subjects with which the repealing act deals.” [1 Lewis’ Sutherland on Stat. Con., sec. 246.] The Act of 1907 does not purport to repeal all former statutes on the same subject. It merely repeals all conflicting acts.

“Where the later or revising statute clearly covers the whole subject-matter of antecedent acts, and it plainly appears to have been the purpose of the Legislature to give expression in it to. the whole law on the subject, the latter is held to be repealed by necessary implication.” [1 Lewis’ Sutherland on Stat. Con., sec. 247.]

It cannot be said that the ‘ ‘ Child Labor Act ’ ’ covered the whole subject-matter of the “Inspection Act,” and therefore the latter is not as a whole repealed by implication.

Section 9 of the Act of 1907 did not repeal the whole of section 6434, Revised.Statutes 1899: It does not purport to do so. The latter section safeguards women as well as children and there is no reason to believe that the Legislature intends to withdraw that protection as to women.

The contention then narrows down to the point as to whether section 6434, in so far as it applied to children under sixteen was repealed. It was not repealed in express words, for there is no conflict between the two sections. It was not repealed by a later act covering the whole subject of the former act. It was not repealed by a later section covering all the subject of the former section. As said by Sutherland in the work above quoted, section 247, “The intention to repeal, however, will not be presumed.” The Act of 1891 in seeking to guard children against the dangers of machinery singled out the one particular of their working between the traversing parts of machinery, or between the fixed and traversing parts thereof. The Legislature must have thought that work in that situation was the most perilous that a child could do. When the "Child Labor Act” was passed it surely was not intended to provide for other kinds of less dangerous work and repeal the law as to the most dangerous kind.

We call attention to the fact that in 1909 (Laws 1909, p. 502) section 6434 was expressly, repealed, "but its provisions in behalf of children were by the same act re-enacted, and those with reference to women were modified. The Legislature did not proceed on the theory that the protection given to children had been or should be repealed. It is true that the construction given by the Legislature against the theory that there was a repeal does not bind us, but we are of the opinion that the Legislature was right in treating the whole section as still in force.

VI. We see no constitutional objection to the statute. Counsel for respondent have not shown us any authority for the proposition that it violates the State or national Constitution. It is a valid exercise of the police power of the State. It is true that in Williams v. Railroad, 233 Mo. 666, section 20 of the Act of 1891, now section 7844 of the Revised Statutes was held unconstitutional because the subject-matter of the section was not embraced in the title. But that section had reference to railroads "and for that reason was held not within the title of the act. The section in controversy was clearly within that title.

The judgment is reversed and the cause remanded with directions to reinstate the verdict and enter judgment in accordance therewith.

Williams, G., concurs.

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

All the judges concur.


source: Caselaw Access Project

author: BBOWN, P. J.

license: Public Domain

text:
    THE STATE v. HARRY GRIFFIN, Appellant.
    Division Two,
    April 8, 1913.
    1.. BILL OF EXCEPTIONS: Not Authenticated. If what purports to be a bill of exceptions is not authenticated by the signature of tbe judge of tbe court who tried the case, nor by the signature of bystanders, it cannot be considered on appeal, and nothing but the record proper is for consideration.
    2. INFORMATION: Rape: Omission of Letter h from Child. An information charging that defendant “did then and there in and upon one Mandy Williams, a female eild of the age of eleven years, unlawfully, violently and feloniously make an assault and her the said Mandy .Williams, then and there, unlawfully, forcibly and against her will, feloniously did ravish and carnally know,” etc., is not fatally defective because the letter A is omitted from the word child. When the whole information is read together, it charges defendant with ravishing a female human being. The omission of a letter from a word or the misspelling of a word in an information written by typewriter is not so apt to mislead and hence is not so serious a matter as in the days of illegible penmanship.
    3. VERDICT: Impeachment by Jurors: Belief that Defendant Could be Paroled. The verdict assessing defendant’s punishment at five years for the ravishment of an eleven-year-old girl, cannot be set aside on the affidavit of jurors to the effect that they did not believe the jury would have agreed upon a verdict if they had not believed the defendant could be paroled. The jury do not possess the power to consider pardons or reprieves.
    Appeal from Callaway Circuit Court. — Hon. David H. Harris, Judge.
    AFFIRMED.

      J. W. Tincher and N. T. Cave for appellant.
    The court erred in refusing to sustain defendant’s motion in arrest of judgment on the theory “that the information upon which the defendant was tried was not sufficient in law.” The information charged defendant with having ravished a female cild-. This allegation is not sufficient in law to sustain an information or indictment. Any material allegation in an information or indictment must be definite and specific. State y. Clinkenbeard, 135 Mo. App. 189; State-y. Fairlamb, 121 Mo. 137; State v. Campbell, 210 Mo.. 202; State v. Skillman, 209 Mo. 408. Tbe charge in the information of having ravished a female did is-not sufficient in law because it does not charge de--fendant with having ravished a human being, and material allegations in an information or indictment cannot be made out by intendment. The word did is not,, to our knowledge, any designation of person or being.

      Elliott W. Major, Attorney-General, and John M.. Dawson, Assistant Attorney-General, for the State.
    (1) The information is good and sufficient, is in-the language of the statute and complies with the opinions and former precedents of this court. Sec. 4471,. R. S. 1909. It is a rescript of the indictment approved' in the cases of State v. Burries, 126 Mo. 565 and State v. Stackhouse, 242 Mo. 444. (2) The bill of exceptions is neither signed by the judge nor by bystanders. State-ex rel. v. Taylor, 134 Mo. App. 430. A bill of exceptions must be properly signed ánd filed before it becomes a part of the record. State v. Libby, 203 Mo. 596; Secs. 2030-2037, B. S. 1909. There being no bill' of exceptions, there is nothing before the court but the record proper. Beño v. Fitz Jarrell, 163 Mo. 411;: State v. Baty, 166 Mo. 561; State v. Winegard, 168-Mo. 490.
   BBOWN, P. J.

Defendant was charged with and. convicted of the crime of rape committed upon one-Mandy Williams, and from a judgment of the circuit court of Callaway county sentencing .him to serve a. term of five years in the penitentiary he appeals.

No Bill ofExceptions. I. The brief of the Attomey-General filed in this case on January 1, 1913, challenges the sufficiency of the bill of exceptions on the ground that it does not purport to be authenticated by the signature of the circuit judge who tried the case, nor by the signatures of three bystanders, as provided by section 2031, Revised Statutes 1909.

Upon examination we find that, so far as matters of exceptions are concerned, this appeal is in the same condition as the appeal in the case of State v. Roy Watts, 248 Mo. 494.

The abstract of the record proper is certified by the cleric of the circuit court in due form and recites that the defendant filed a bill of exceptions, but said record proper contains no copy of the evidence or instructions of the court.

What defendant asks us to treat as a bill of exceptions is a mere bundle of typewritten papers, not authenticated by the certificate of the clerk of the circuit court, and not attached to any paper that is authenticated or verified. If this bundle of papers speaks .the truth what was intended as a bill of exceptions was not authenticated by the signature of the trial judge. The concluding paragraph of what defendant insists is a copy of the bill of exceptions reads as follows:

And now, within the time allowed, comes the defendant and presents this his hill of exceptions herein and prays the court to sign, seal, allow, settle, and file the same and make it a part of the record in this cause.
And this is accordingly done on this the-day of-, 1912. -
Judge of the Callaway County
Circuit Court, State of Missouri.

Upon the authority of the case of State v. Watts, supra; Roberts v. Jones, 148 Mo. 368; Reno v. Fitz Jarrell, 163 Mo. 411; State v. Collins, 196 Mo. 87, and State v. Brown, 164 Mo. App. 726, we must decline to review anything except the record proper in this cause.

II. Omitting formal parts, the information charges that defendant:

“On or about the 19th day of August, 1911, at Callaway county, Missouri, did then and there in and upon one Mandy Williams, a female did of the age of eleven years, unlawfully, violently and feloniously make an assault and her the said Mandy Williams, then and there, unlawfully, forcibly and against her will, feloniously did ravish and carnally know; contrary to the form of statutes in such cases made and provided and against the peace and dignity of the State.”

Defendant insists that the letter h being omitted from the word child, as used in the foregoing information, said information is thereby rendered meaningless and fatally defective; consequently, his motion in arrest should have been sustained. To support this contention defendant’s attorneys cite: State v. Clinkenbeard, 135 Mo. App. 189; State v. Fairlamb, 121 Mo. 137, 154; State v. Campbell, 210 Mo. 202, and State v. Skillman, 209 Mo. 408.

The Campbell and Skillman cases are not authority for defendant’s contention, because they ride off on a proposition that one whole word was omitted from the indictment in those eases, while the matter now in judgment pertains only to the misspelling of a word.

As to whether the Skillman and Campbell cases go too far in holding that all words used in the Constitution are necessarily mandatory, we need not decide because that point is not before us in this case.

The rule that indictments must be specific only voices the command of section 22 of article 2 of our State Constitution, which declares that in all criminal cases the accused shall have the right “to demand tht nature and cause of the accusation” upon which the State seeks to take away his liberty.

The issue here is: did the above quoted information inform the defendant that he stood accused of ravishing and carnally- knowing a female of the genus homo ¶

Upon careful consideration we hold that it did. The information gives not only the Christian name hut the surname of the prosecutrix, and the recital of her surname almost indisputably points to the fact that the pleader meant to designate a female human being. The lower animals are frequently given names corresponding to our own Christian names, but we take judicial notice that the lower animals are rarely given a surname. The information also twice referred to the prosecutrix as “her,” a pronoun invariably used in referring to a female human being; so that, when the whole indictment is read together, we think it clearly charged the defendant with ravishing a female human being, as prohibited by section 4471, Revised Statutes 1909.

Those cases which require extreme accuracy in the spelling of all words used in indictments are founded upon the former custom of writing all legal documents with a pen (or goose quill), when the chirography of the writer was often so difficult to read that the omission of a single letter from a word rendered such word unintelligible. . Since typewriting has been almost universally adopted, the omission of a letter from a word or the misspelling of a word, which frequently occurs through the striking of the wrong key of a typewriter, does not usually obscure the meaning of the document wherein such misspelled word occurs.

Being convinced that in this case the misspelling of the word “child” did not mislead or “prejudice the substantial rights of the defendant upon the merits” within the purview of our Criminal Statute of Jeofails (Sec. 5115, R. S. 1909), we rule this assignment against him.

III. After the verdict was returned several of the persons who sat in the case as jurors and returned the verdict made affidavit that they did not believe the would have agreed upon a verdict if they had not believed the defendant could he paroled. The court properly refused to set aside the verdict on such a showing. The jury possessed no power to consider pardons or reprieves. Their sole province was to determine the guilt or innocence of defendant. If they were convinced beyond a reasonable doubt of his guilt, it was their duty to convict him, and leave the matter of clemency where the Constitution and laws of our State have placed it.

Finding no reversible error in the record proper the judgment of the trial court is affirmed.

Faris and Walicer, JJ., concur.


author: PARIS, J.

text:
    JOHN J. MULROONEY, Administrator of Estate of JOHN BULFIN, Appellant, v. IRISH-AMERICAN SAVINGS & BUILDING ASSOCIATION.
    Division Two,
    April 8, 1913.
    1. RESULTING TRUST: Deed as Mortgage: Necessary Proof. Tlie ‘prima facie presumption is that a deed, absolute on its face is what it purports to be; and the burden is upon the grantor to establish, by clear, cogent and convincing proof, that it was not an absolute conveyance, but a mortgage, and being such that the grantor has a resulting trust in the proceeds of.the property after sale and the payment of an existing deed of trust.
    •2. -: -: -: Building and Loan Mortgage. Plaintiff had given a deed of trust to a building and loan association to secure a loan, and defaulting for six months in the payment of premiums the association entered upon its records that “unless within seven days from notice he pay off the delinquency or entire loan, he must either give the association a quit-claim deed or the property be advertised for sale under the déed of trust.” He did give a quit-claim deed, which expresses a consideration of only one dollar, which was not paid; but the association’s minutes recite tliat twenty-five dollars were paid him because be “bas no money to pay one month’s rent of bis new place and to enable him to move.” He claims that there was an oral arrangement between him and the secretary of the association, who came to him at the time the quit-claim was executed, by which, in consideration of the deed, the association was to repair the- house, rent it, apply the rents on the loan until sold, and when sold so much of the proceeds on the loan as would pay it, and pay him the balance, and he sues for such balance. But his testimony about the alleged agreement is not clear, definite or certain, and is clearly contradicted by the secretary, who says there was no such agreement. Held, that the evidence is not sufficient to establish a mortgage and a resulting trust.
    3. STATUTES: Building and Loan Associations: Constitutional. The constitutionality of Secs. 3389 and 3391, R. S. 1909, is affirmed on the authority of Spithover v. Building & Loan Association, 225 Mo. 660.
    4. USURY: Building & Loan Association: Thirty Per Cent Premium: Limitations. A loan by a building and loan association at a premium of thirty per cent, evidenced by a deed of trust bearing five per cent, is so unreasonable and extortionate as to be open to investigation and correction by a court, and such investigation is authorized by Sec. 3391, R. S. 1909, if suit is timely instituted. But where the loan was made nine years before suit was brought; and the borrower ceased to pay premiums seven years prior thereto, such investigation is barred by the Statute of Limitations. Nor is the bar tolled by the statute in reference to the discovery of fraud; nor is the ten-year statute made applicable by the fact that the loan is secured by a deed of trust on real estate. The real estate is but an incident; the loan itself is the thing for which the usurious interest was charged.
    5.-: -: -: -: Linked up with Accounting. Where the purpose of the suit t^as to have the deed, by which the borrower after default conveyed the property back to the association, declared a mortgage, and for an accounting on the theory that he had a resulting trust in the proceeds of a subsequent sale of the property, and that part of the suit must fail because of insufficient proof, the matter of usury in the original loan becomes an independent matter, and the bar of limitations as to it cannot be avoided by an attempt, to link them together, although if plaintiff could have maintained the part of the suit for an accounting the court could then link up and connect with it the transaction as to usury.

      Appeal from St. Louis City Circuit Court, — Mon. Wilüam M. Kinsey, Judge.
    AFFIRMED.

      James J. O’Donohoe for appellant.
    (1) The funds of a building and loan association must be offered to the stockholders at a stated meeting without restriction as to the premium. Each stockholder must be afforded the opportunity of borrowing at the lowest rate he can in competition with other stockholders. The officers or board of directors have no right to fix by law or otherwise a minimum or maximum premium. Sec. 1362, E. S. 1899; Lewis v. Loan & Bldg. Assn., 183 Mo. 351; McDonnell v. Sav. & Bldg. Assn., 175 Mo. 250; Euppell v. Guar. Sav. & Bldg. Assn., 158 Mo. 613; Arbuthnot v. L. & B. Assn., 98 Mo. App. 382; Thudium v. L. & B. Assn., 98 Mo. App. 377; Sappington v. Loan Co., 91 Mo. App. 551; Fry v. Sav. & Bldg. Assn., 88 Mo. App. 289; Fowles v. Loan Co., 86 Mo. App. 103; Clark v. Guar. Sav. & Bldg. Assn., 85 Mo. App. 388; State ex rel. v. Stockton, 85 Mo. App. 477; Miller v. Guar. Sav. Bldg. Assn., 83 Mo. App. 669; Edinger v. Guar. Bldg. Assn., 83 Mo. App. 615; Barnes v. Guar. Sav. & Bldg. Assn., 83 Mo. App. 466; Sappington v. Loan Co., 76 Mo. App. 242; Price v. Empire Loan Co., 75 Mo. App. 551; Moore v. Building & Loan Assn., 74 Mo. App. 468. (2) It is the law of this State for nearly three-quarters of a century that an agreement such as stated in the petition need not be in writing. Eose v. Bates, 12 Mo. 30; Groves’ Heirs v. Fulsome, 16 Mo. 543; Slowey v. Mc-Murray, 27 Mo. 118; McNew v. Booth, 42 Mo. 189; Peacock v. Nelson, 50 Mo. 256; Damschroeder v. Thias,. 51 Mo. 100; Eogers v. Eogers, 87 Mo. 257; Fallon v. Clopton, 89 Mo. 284; Berlien v. Bieler, 96 Mo. 491; Leahey v. Witte, 123 Mo. 211; Eichardson v. Champion, 143 Mo. 545;. Phillips v. Hardenburg, 181 Mo. 475; Berg v. Moreau, 199 Mo, 416. Full performance by one of the parties to a contract takes an express trust out of the operation of the Statute of Frauds. Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Sutton v. Hayden, 62 Mo. 101; Sharkey v. Mc-Dermott, 91 Mo. 647; Hall v. Harris, 145 Mo. 614; Alexander v. Alexander, 150 Mo. 579; Bless v. Jenkins, 129 Mo. 657; Marks v. Davis, 72 Mo. App. 562; Hasen-beck v. Hasenbeck, 111 Mo. App. 38. Past performance does likewise. Hoyle v. Bush, 14 Mo. App. 408; Fuchs v. Fuchs, 48 Mo. App. 23. The Statute of Frauds has no application in a suit based upon fraud practiced by defendant. Corder v. O’Neill, 176 Mo. 401. An express trust in personal property can be •created by parol. Banking Co. v. Miller, 190 Mo. 665. A conveyance absolute on its face from a debtor to his creditor, will, in equity, be treated as a mortgage. Brant v. Robertson, 16 Mo. 129; Sharkey v. Sharkey, 47 Mo. 543; O’Neill v. Capell, 62 Mo. 202; Griswold v. Seligman, 72 Mo. 124; Borum v. Reed, 73 Mo. 462; Schradski v. Albright, 93 Mo. 48; Hargadine v. Henderson, 97 Mo. 386; State to use v. Bell, 2 Mo. App. 103; Newell v. Keeler, 13 Mo. App. 191. (3) The ten-year Statute of Limitations applies in this case, and it did not begin to run until after the sale of the real estate and the repudiation of the agreement by respondent. Hunter v. Hunter, 50 Mo. 445; Bender v. Zimmerman, 80 Mo. App. 138; Shinn v. Wooderson, 95 Mo. App. 6. Estoppel to be availed of as a defense must be pleaded. Cockrill v. Hutchinson, 135 Mo. 75; Throckmorton v. Pence, 121 Mo. 60; Avery v. Railroad, 113 Mo. 568; Hammerslough v. Cheatham, 84 Mo. 21; Bray v. Marshall, 75 Mo. 330; Fernean v. Whitford, 39 Mo. App. 317; Plow Co. v. Lang, 55 Mo. App. 356. Lapse of time, short of the statutory period of limitations, does not constitute laches, and, like estoppel, to be available as a defense, must be pleaded. Cantwell y. Crawley, 188 Mo. 57; Condit v. Maxwell, 142 Mo. 266; Eeal Estate Co. v. Lindell, 142 Mo. 61; Spurlock y. Spronle, 72 Mo. 503; Purdy v. Banker’s Life Assn., 101 Mo. App. 109; Bank y. Kennett Est., 101 Mo. App. 398; Smith, v. Boach, 59 Mo. App. 115. (4) The fact that Dwyer called three or four times at Bnlfin’s home in reference to the loan and finally secured the quitclaim deed from him establishes his agency. Ingalls v. Ayeritt, 34 Mo. App. 371. One who ratifies an act done in his name without previous authority ratifies it as done, and he cannot adopt the part which is beneficial to him, and reject that which is injurious. Dry Goods Co. v. Bank, 81 Mo. App. 51; Bohlmanns v. Eossi, 73 Mo. App. 313; McLachlin v. Barker, 64 Mo. App. 511; Fahy v. Grocery Co., 57 Mo. App. 73; Clark y. Clark, 59 Mo. App. 532; Horse Co. v. Bennett, 52 Mo. App. 333; Davis v. Krnm, 12 Mo. App. 279; Porter v. Woods, 138 Mo. 539; Barrett v. Davis, 104 Mo. 561; State ex rel. v. Harrington, 100 Mo. 170. “Where one party to an alleged contract made by its agent denies the contract, and then introduces the agent to prove what the contract really was, such party will not be heard to deny the agent’s authority to make any contract whatever.” Silver v. Eailroad, 5 Mo. App. 381; 72 Mo. 194.

      B. M. Nichols for respondent.
    (1) The payments of alleged non-competitive premium were made voluntarily and plaintiff cannot recover a voluntary payment made. Flynn v. Mechanics B. & L. Assn., 93 Mo. App. 444; Eanson v. Hayes, 39 Mo. 445; Kirkpatrick v. Smith, 55 Mo. 389; Peters v. Loenstein, 44 Mo. App. 406; 33 L. E. A. 358n. (2) The statutes against usury do not change this common law rule because they are penal and must be construed strictly, and because the present suit is not within its meauing. Flynn v. B. & L. Assn., 93 Mo. App. 444; Little v. Hooker, 122 Mo. App. 620. (3) The alleged exaction of the non-competitive premium on June 10,1896, gave a canse of action. The payment of monthly dues on the stock np to and including January, 1898, does not, within the sense of the statute, constitute “an open and current account,” so as to prevent the bar of the statute. The alleged noncompetitive premium was clearly barred at the institution of the suit, December 16, 1905. R. S. 1899, sec. 4278; Thompson v. Brown, 50 Mo. App. 314; Harrison v. Hall, 8 Mo. App. 167. (4) The alleged exaction of a non-competitive premium on June 10, 1896, could not be connected with the alleged promise to receive the title and account for the sum realized from the sale less the debt; it could not be a “running account” so as to draw the one into the other, thereby saving it from the statute. The case of Hunter v. Hunter is overruled. Hudson v. Cahoon, 193 Mo. 549; R. S. 1899, secs. 4273 and 4278; Richardson v. Gregory, 126 Ill. 166; Callan v. Callan, 175 Mo. 346. (5) The deed, as Bulfin says, was given to save the expense of foreclosure. There is no rule of law which would prevent the mortgagee from taking a quit-claim deed from the mortgagor in extinguishment of the mortgage. The testimony does not show that the quit-claim deed was given as a security for the debt, or that after the giving of the quit-claim deed any debt was claimed to exist by the defendant. The testimony shows that the quit-claim deed and the $25 were in satisfaction of Bulfin’s interest in the property, and unless the effect of the quit-claim deed is overthrown by clear and positive evidence it must prevail. Bailey v. Trust Co., 188 Mo.' 483; Jones v. Hubbard, 193 Mo. 147; Bowman v. Ush, 143 Ill. 667; Boeck v. Donnovan, 217 Mo. 70.
   PARIS, J.

This is an action in equity for an accounting. It is here on appeal from a judgment of the circuit court of the city of St. Louis, in which latter court it was begun on the 16th day of December, 1905. The circuit court found the issues for the defendant and dismissed the bill of plaintiff. An appeal was prosecuted in due form to the St. Louis Court of Appeals, but the latter court, upon its attention being called to the fact that the case, as made by the pleadings, involved the question of the constitutionality of section 3389 (R. S. 1909), and section 3391 (R. S. 1909), transferred the case here under the constitutional provision, without rendering any decision herein.

As originally filed, John Bulfin and his wife Mary E. Bulfin, were plaintiffs, and respondent Irish-American Building & Loan Association, a corporation, organized under the laws of Missouri, was defendant. Pending the action in the court nisi, and on the 15th day of February, 1906, plaintiff John Bulfin died, and the suit was properly revived in the present plaintiff below and appellant here, John J. Mulrooney, as administrator of John Bulfin, deceased. Upon the trial the suit was dismissed as to Mary E. Bulfin, an original plaintiff, upon the admission that she was in no wise interested in the cause of action.

In substance the allegations of the petition are that on the 9th day of June, 1896, plaintiff’s intestate, John Bulfin, being desirous of purchasing a home for himself (which home was afterwards purchased and will be hereinafter called, for convenience, No. 2826 Dickson street), made application to defendant for a loan, the proceeds of which were to be used, and were used in the purchase of the house above named. This loan he agreed to secure and did afterwards secure, by a deed of trust on the premises, as well as by hypothecating with defendant as collateral, seventeen shares of stock in defendant association. The loan was evidenced by a bond for the sum of $4080, and the said bond and deed of trust securing same were duly executed by plaintiff’s intestate, hereinafter for convenience, called Bulfin, and Ms wife, and the same duly placed of record on the 10th of June, 1896. Bulfin was required to pay and did pay thirty per cent premium for said loan of $4080, which premium the petition avers, and the proof shows, was deducted from the sum of $4080, and Bulfin actually received in cash thereon only the sum of $2856.

Plaintiff further avers in substance that in the making of said loan by defendant it was not offered at auction as a former statute required, nor was there any competitive bidding therefor, but that it was loaned in pursuance of a certain quoted by-law of defendant, which by-law is as follows:'

“Section 1. Funds, How Formed and Loaned.— The object of the association shall be the accumulation of a fund to be loaned to its members, or to persons not members. This fund shall be formed from collection of monthly dues, premiums on loans, interest on loans, fines, and other sources.
“The money thus accumulated shall, at each regular meeting on the fourth Wednesday of each month, be put up at auction and awarded to the member who bids the highest premium for the same. This premium shall be deducted in advance, the successful bidder receiving in cash the amount of his loan, less the premium bid. No loan shall be made at a less premium than twenty per cent, nor at a greater than thirty per cent. If two members bid thirty per cent, lots shall be drawn between them. No loan shall be made on the same evening for a premium lower than the bid next to the successful bid.
“The borrower must pay all the expenses incident to the loan, whether said loan is ratified by the board or not.”

Plaintiff’s petition further averred that Bulfin had been a member of defendant association since June, 1891, and the owner of certain stock therein, on wMch he had paid a large sum, namely, the sum of $1313.40. (This point, upon the proof and the admission of plaintiff’s counsel upon the trial, fell ont of the case and need not be further referred to). Plaintiff further averred that one Thomas Eice, who was trustee in the deed of trust aforesaid, was at the time a shareholder and director and an officer of defendant association; that by the bond securing the deed of trust aforesaid, Bulfin agreed to pay $34 per month; that upon his failure to pay said monthly installments for the period of six months, the whole debt became due, and the deed of trust became subject to foreclosure. That the last payment upon said loan was made in the month of January, 1898, and that on the 22nd of October, 1898, Bulfin, by reason of age and attendant infirmities and financial embarrassment was unable to meet the payments, and that upon said date Bulfin made a quitclaim deed to defendant association upon the representation and agreement that defendant was not to take such quit-claim deed as an absolute conveyance, but was to hold the title in trust for Bulfin; to put the premises in repair, rent the same, and collect the rents therefrom, and as soon as possible to procure a purchaser for such premises; sell the same and apply the proceeds thereof and the rents therefrom, to the payment of said loan, and to turn over the residue to Bul-fin; that Bulfin was.to receive, and did, as the proof shows, receive, the sum of twenty-five dollars to enable him to move from said premises, and that upon the said date of the making of said quit-claim deed, namely, October 22, 1898, the defendant association, through said Eice, the trustee, in the deed of trust, was threatening, unless a quit-claim deed of conveyance was made, to foreclose such deed of trust; that in pursuance of said agreement, defendant paid the sum of twenty-five dollars to Bulfin and he moved out of said premises; that defendant thereupon-proceeded to rent said property to others; to collect the rent therefrom until Marcia 26, 1904, on which, date defendant conveyed the premises in question to certain Borren-pohls by warranty deed for the consideration of $3150, though said premises were, as plaintiff avers, at that time of the value of at least $4000. Plaintiff avers that the promises alleged by plaintiff as having been made by defendant, viz., that it would put said premises, by repairing same, into a salable condition; that it would rent the same for the benefit of Bulfin, and that it would procure a purchaser therefor, and apply the proceeds of the resulting sale, together with the rents thereof, to the payment of Bulfin’s loan, were not kept or carried out, and that the same were false and fraudulent and intended so to be, and that they were designed with the intention of cheating and defrauding Bulfin out of his interest in said premises. That great faith and reliance and confidence were had and placed by Bulfin in defendant, its officers, agents and employees; that Bulfin relied upon them and upon their statements, and that the falsity of such statements and the fraudulent intent designed and intended were not discovered until after the sale of said premises to the Borrenpohls, on or about the 26th of March, 1904.

For prayer plaintiff asks that an accounting may be had between the parties, “that plaintiff may have judgment against defendant for the amount found to have been paid it by plaintiff, Mary E. Bulfin, [sic], and her deceased husband, the rents collected by said defendant, the amount defendant received for said property with interest thereon, less any amount that may be found to be unpaid on the loan, twenty-five dollars advanced to plaintiff and her deceased husband, a reasonable compensation for defendant’s services in and about the property and such other and further credits as may be just and proper in favor of defendant, and for such other orders, decrees and judgments as may be just and equitable in tbe premises.”

Defendant answering (a) denied generally each: and every allegation contained in the petition, or any knowledge or information thereof sufficient to form a belief; (b) averred that the cause of action did not accrue within five years next before the commencement of the suit; (c) that the alleged agreement creating an implied or resulting trust was not in writing as required by statute; and (d) estoppel by deed and by the payment by defendant and acceptance by Bul-fin of the sum of twenty-five dollars.

Plaintiff, by reply, denied, generally the new matter.

The facts as developed upon the trial, touching which there is either no dispute, or which we find to have been proven, are about as follows:

For some five years prior to June 10, 1896, the date when Bulfin procured the loan in question, he was a shareholder in defendant association, holding twelve shares of stock. Since, however, as counsel for plaintiff concede, Bulfin turned these shares in and received their value in cash, they need not be further considered in the case. On the said 10th day of June, Bulfin obtained the loan mentioned in the petition. The proof shows that while he incurred a debt for $4080, securing such debt by a deed of trust on No. 2826 Dickson street, and by the deposit, as further security and as collateral, of seventeen shares of new stock at that time issued to him, he in fact obtained in cash on his said loan only the sum of $2856; he being charged a thirty per cent premium for his stock, which amounted to the sum of twelve hundred and twenty-four dollars, and which latter sum was deducted from the cash paid to bim on his loan. He paid to his vendors for the Dickson Street property the sum of thirty-five hundred dollars in cash. This cash payment was made up of the $2856, which he actually received out of the $4080 loan, and some six or seven hundred dollars, being the cash value of his twelve shares of surrendered stock, which sum was also paid him therefor by the defendant association. The deed of trust executed by Bulfin and wife stated upon its face that the loan bore five per cent premium per annum. This loan was agreed to be repaid by Bulfin in monthly installments of thirty-four dollars per month for ten years, which payments in the aggregate would have amount to the said sum of $4080 alleged to have been loaned to him, but the whole amount of which, as we have seen, was not so loaned to him. Between July 8, 1896, and January 7, 1898, inclusive, there was paid by Bulfin on this loan by monthly installments the sum of $683.40. Subsequent to January 7, 1898, Bulfin became and remained in default in his payments, and on the 10th day of August, 1898, he owed thereon $256.40, as shown by the books of the defendant association. At this time, as the defendant’s corporation record shows, an order was made on him to pay the installments in which he had defaulted, by the September meeting of the board. Bulfin was at this time a member of the board of directors of defendant association. The date at which he became a director rests in doubt, but he seems to have been elected on this board shortly following the taking out of the loan by him. He continued as director until sometime prior to November 9, 1898. Bulfin was present at a meeting of the board of directors of defendant association on September 14, 1898, at which time, at his request, he was given an extension till the October meeting following within which to meet his delinquencies. Not paying within the time, on October 12, 1898, “the board of directors (of which Bulfin was still a member, but at the meeting of which on this date he was not present), made an order that he pay within seven days, or foreclosure would be had. Bulfin did not pay within the time limited, but on October 22, 1898, joined his wife in a quit-claim deed of conveyence, conveying the said Dickson street property to defendant corporation for the expressed consideration of the sum of one dollar, which consideration was never actually paid; though Bulfin was paid by the defendant association the sum of twenty-five dollars to pay the costs of his removing from said premises, and to enable him to rent another house. This quit-claim deed is in the ordinary form and makes no reference to any further consideration or inducement for the making thereof, except the nominal sum of one dollar. After the relinquishment of the premises by Bulfin, defendant took charge of the property, repaired it, paid the taxes thereon, rented it, collected- the rents therefrom until March 26, 1904, when defendant association sold it to a certain Barren-pohl and wife for the sum of $3150, and conveyed it by deed of warranty in ordinary form. On this date, to-wit, March 26, 1904, the deed of trust from Bulfin and wife to defendant corporation was released of record. Between the date of the conveyance by Bul-fin to defendant and the date of the conveyance by defendant to the Barrenpohls, defendant collected as net profits out of the rents on said property, the sum of $696.42. At the time all these matters and things were transpiring, one M. E. Smith was the president of defendant corporation, and Thomas A. Rice was the secretary thereof till January 13, 1904, and thereafter till March 26, 1904, perhaps afterward, IV. P. Dwyer was acting secretary of defendant corporation. Rice and Dwyer were, during all these times, co-partners in the real estate business, and the office of defendant corporation was in the office of Rice & Dwyer, who did business as “The Rice-Dwyer Real Estate Company. ’ ’ Rice died on March 26, 1904, prior to the ' final closing up of this matter by the sale to the Bar-renpohls, and some eighteen months before this suit was brought. The above facts seem to be conceded by both sides.

A sharp issue of fact, however, arose as to whether the quit-claim deed of conveyance, dated October 22, 1898, from Bulfin and wife to defendant association, was made by the Bulfins and taken by defendant association merely for the purpose of securing .the loan, or whether it was in its legal effect a mortgage carrying with it a resulting or implied trust in favor of' Bulfin, by the terms of which trust defendant association was to repair the premises in question, to rent the same, procure a purchaser therefor and to sell the premises, and account to Bulfin for the rents therefrom and the proceeds thereof, over and above what Bulfin owed the defendant association. On this point, Bulfin, who testified in his own behalf, says:

“Q. Why did you make this quit-claim deed to the association? A. Well, he said he” would put me out, and my wife did not want to have all our furniture thrown out on the sidewalk — and it was only a question of time — we thought we would have to go anyway, and it would save the expense of costs, and would save that much expense, and I thought it better to go out and give them a quit-claim deed. And then, according to what they said, they would sell the house, and whatever it brought after I paid what I owed in that association, they would give back to me. And that is why I gave the quit-claim deed.”

It does not appear clearly whether Bulfin is claiming in the above excerpt that this statement was made by Dwyer, or by Rice, who was dead. Objections were sustained throughout the case as to what Rice told Bulfin, because of the prior death of Rice. Again, Bul-•fin testified in his own behalf:

“Q. Now state how'you came to give this quitclaim deed to the association, the defendant here? A. Well, they wanted possession, and in order to save expense, I thought I had better make a quit-claim deed, and they would put the house in shape and sell it; and that what the house brought, after the debt I owed in the association, I would get the balance. That was the conditions. . . .
"Q. Then this conversation was with Rice? A. Rice and Dwyer both. They were connected, you know, with the real estate business, I believe, and the other association. . That was fixed between themselves, T don’t know how.
££Q. The conversation which yon speak of, in which you say they promised to receive the property and fix it up and sell it and divide the proceeds, was that Mr. Rice, the secretary of the Association? A. Both of them said that.”

This witness further says in substance, that when Dwyer brought the quit-claim deed from Bulfin to defendant association to be signed by him and his wife, it was signed and delivered by them under "the condition that he would put the house in repair and sell it and whatever the house brought after my debt was paid in the association he would turn it over to me. He sold the house and I got nothing.”

Bulfin also says that the first time Rice and Dwyer called they asked him for possession. Except the fact that the deed of trust made by the Bulfins to. defendant association was released of record on the same day that defendant executed the deed of conveyance to the Barrenpohls, to-wit, the 26th of March, 1904, there is nothing in the testimony of plaintiff, except the facts above quoted, pertinent to plaintiff’s contention that a resulting trust was created, and that the absolute quit-claim conveyance was intended to he a mortgage instead of such absolute conveyance.

The testimony of Bulfin as to the conditions under which he executed the quit-claim deed, and under which he was induced to act, are absolutely contradicted by the witness W. P. Dwyer testifying for defendant. Dwyer says that he did not make the statement credited to him by Bulfin and that his sole purpose in visiting the Bulfins was to obtain an absolute quit-claim deed to close up the loan under the orders of defendant, by taking over the property which secured the loan.

As to whether Bulfin, after he moved out of the property, took any interest in it, or exercised any control over it, he testified as follows:

“Q. After you left the property you say you never went back to look at it excepting as you happened to pass by? A. That is all; I had no interest in it any more.
“Q. After you moved out of it you say you had no further interest in it, and did not go back to see it? A. No, sir. Why should I bother about other people’s property? I had no interest any more. I thought they would sell it some day, and that they would stand by their agreement. The only mistake that I made I should have got it in writing. ’ ’

The above facts are deemed sufficient to show the points involved in the case, and should other facts be deemed pertinent in the course of the opinion, they will be therein set out.

OPINION.

The principal contention of learned counsel for plaintiff, the appellant here, seems to be that upon the facts he was entitled to the relief prayed for. That he should have been granted an accounting by the court nisi, and that to this end, the court should, under the facts and the law, have decreed the absolute conveyance of October 22, 1898, to be but a mortgage merely, and that having so decreed the court should have found for plaintiff for the rents over and above the amount paid by defendant association for repairs and expenses, and for the profits accruing, by reason of the sale to the Barrenpohls of the premises; and that the court below should have found that the premium of thirty per cent paid by Bulfin on the loan in question was usurious; that it should have decreed that defendant account for all sums taken as premium in excess of six per cent interest on the amount actually borrowed, and that after deducting taxes, commission, repairs, and the sum of twenty-five dollars advanced to Bulfin, judgment should have been for plaintiff for the surplus. . • '

I. At the very threshold, of this contention we are met by the question as to whether there was in the record sufficient testimony upon which a court of equity would be justified in finding that the deed of conveyance made by Bulfin and wife to defendant was not, as on its face it seems, an absolute conveyance, nor intended so to be; but that the same was only a conveyence in the nature of a mortgage, creating a resulting or implied trust in favor of Bulfin.

Upon this point there is absolutely no proof in the record, except the testimony of Bulfin, which we have set out above, and the further fact that the deed of trust was not, for some reason, released of record until the very date when defendant association conveyed the premises in question to the Barrenpohls.

Opposed to the testimony of Bulfin is the absolute and pointed denial of the witness Dwyer. The statements of Bulfin as to the conversation had by him with Rice and what Rice said therein, were properly held by the court nisi, to be inadmissible, Rice being dead. So that the matter stands, so far as the testimony in the case is concerned, upon Bulfin’s assertion of the fact and Dwyer’s denial of it. Bulfin himself is not clear, definite, or certain about the facts and about the alleged agreement, but states them indefinitely and generally.

The entries shown upon the trial, from the minutes of the hoard, of which board Bulfin was himself at the time a member, show that from August 10, 1898, defendant association was urging payment by Bulfin, ordering the deed of trust to be foreclosed, extending the time therefor, threatening actions and endeavoring to settle the matter with Bulfin. The record entries from the minutes of defendant association’s directors’ meetings show neither word nor hint that the arrangement or agreement testified to by Bulfin was ever made or even considered by. defendant.

"While conceding that such a trust as this is alleged to be, is not within the Statute of Frauds, but that the existence of the same may be shown by oral testimony, as has been many times held in this State, yet, while so holding, our courts have uniformly held that the evidence necessary to establish such a trust must be clear, cogent and convincing. [Ringo v. Richardson, 53 Mo. 385; Smith v. Smith, 201 Mo. 533; Bunel v. Nester, 203 Mo. 429.]

In the case of Bobb v. Wolff, 148 Mo. 335, syl. 2, this court said: “In such case the prima facie presumption is that the deed is what it purports to be, an absolute conveyance, and the burden is cast on the grantor to overcome this burden and show it to be a mortgage, and to do that, clear, unequivocal and convincing evidence is required, and if such evidence is not forthcoming the prima facie presumption will prevail.”

While Bulfin was a member of the board of directors, but at a meeting at which he was not present, it was ordered, as appears from the minutes, “that unless within seven days from notice he pay off the delinquency or entire loan, he must either give the association a quit-claim deed or the property be advertised for sale under the deed of trust.”

We have seen that the quit-claim deed of conveyance was in the usual form of such conveyances; that the only consideration set out or mentioned therein is the sum of one dollar; although the record shows that the dollar was not in fact paid. But twenty-five dollars was paid to Bulfin as an act of grace, or as a sort of gift, and because, as the minutes of the defendant recite,'“Mr. Bulfin had no money to pay one month’s rent of his new place and enable him to move. ’ ’

We must therefore hold that, upon this question,, the plaintiff has not met the strict requirements of the law and furnished clear, convincing and unequivocal proof that an implied or resulting trust was in fact created in his favor.

II. The unconstitutionality of certain sections- of our law governing building and loan associations, to-wit, sections 3389 and 3391, is urged by appellant. This point, since the appeal herein was taken, and since the order of transfer was made by the St. Louis Court of Appeals, has been decided adversely to plaintiff’s contention in the case of Spithover v. Building & Loan Assn., 225 Mo. 660. This is a well-considered case, with which we are not inclined to differ, but approve all that is said in that case upon the facts involved. The appellant, in a supplemental brief filed in this court, is frank enough to concede that this holding is against him, but urges that the transaction in this case is so unreasonable and extortionate as to be open to investigation and correction by this court. In support of this contention he cites section 3391, Eevised Statutes 1909.

We may say that we agree with learned counsel for appellant that the premium charged Bulfin was, under the facts here, so unreasonable and extortionate as to render the transaction open to investigation and correction by this court, if we were able under the law to reach this point. But unfortunately for appellant, the first point urged by him, having, for the lack of proof sufficient in law, fallen out of the case, by that fact this one also falls out. In our view, if appellant could have maintained the point urged by him, that an implied trust was, under the law and the evidence, created by the facts and circumstances in this case, then by the same token, he would have been enabled so to connect and link up all the transactions here as to have furnished this court with a legal excuse to investigate the unreasonable and extortionate character of the transactions of defendant in exacting the premium of thirty per cent charged by it against Bulfin for this loan. [Freeland v. Williamson, 220 Mo. 217.]

We have seen, however, that the first payment of the monthly installments provided for by the deed of trust, which installments included the usurious interest sought to be recovered, as being unreasonable and extortionate, occurred in July, 1896, and the last of these payments occurred January 7, 1898. This suit was not brought until December 16, 1905, at which time almost nine years had elapsed from the first payment, and almost seven years from the last payment. We are mindful of the rule and of the statute as well, which tolls the bar of the Statute of Limitations in cases of fraud; but we have been compelled to hold, upon the facts, that no fraud existed here, nor is any shown in the matter of the conveyance. The matter of payment, therefore, of the alleged extortionate premium stands isolated in the case, and we are unable to connect it with any other proven facts so as to take it out of the bar of the Statute of Limitations. It stands, as it were, in the case as a voluntary payment of usurious interest, made almost seven years before the bringing of the suit. The defendant urges that the five year Statute of Limitations is a bar to an investigation of the matter of the payment of usurious interest, and in this view we are forced by the law, with reluctance, when we consider the transaction, to concur. It will not do to say tliat this point is saved by the fact that the usurious interest alleged to have been paid, was something which in somewise accrued out of real estate, and that therefore, the statute of ten years applies, because this is, in a sense, a real action. We deem this view inaccurate, when applied to the facts here. .The real estate involved is but an incident, the premises in question merely served as security for the loan; the loan itself was the thing for which the usurious interest was charged. So this contention, we take it, must fall by the wayside. We do not want to be understood as holding that under the facts here the by-law of defendant association quoted, is a proper one, and that it is in compliance with our statute governing building and loan associations. Nor do we want to be understood as holding that in a proper case, or a case wherein the premium charged is unreasonable and extortionate, we have not ample authority to investigate these matters. The statute itself (Sec. 3391, R. S. 1909) confers this power upon the courts.

For the reasons given we are of opinion that this case should be affirmed, and it.is so ordered.

Brown, P. J., and Walher, J., concur.


author: WILLIAMS, C.

text:
    THE STATE ex rel. CHARLES I. JACOBS v. WATER, LIGHT AND TRANSIT COMPANY OF CARROLLTON, Appellant.
    Division Two,
    April 8, 1913.
    1. APPELLATE JURISDICTION: Motion to Retransfer to Court of Appeals: Overruled. When the Supreme Court has overruled a motion to retransfer a case to the Court of Appeals the question of jurisdiction becomes res judicata.

    2. PUBLIC SERVICE CORPORATIONS: Rate Agreement: Evidence: Mandamus. Defendant’s predecessor was granted an electric light franchise in 1892 by which the rates were fixed for five years. Section 7 of the ordinance granting the franchise provided for a revision of the rates by arbitration at the end of each period of five years, and ended by saying: “The prevailing average current rates for like services in North Missouri cities and towns shall be the rates adopted at the end of each five years.” The rates were accordingly readjusted in 1908', the agreement containing a provision as follows: “Incandescent lights and power to private consumers . . . twelve cents per kilowatt hour.” Soon thereafter, when his bill as determined by the foregoing provision would have been fifty-four cents, relator was presented with a statement for one dollar, and upon his refusal to pay that sum his house was disconnected, the company contending that under the provisions of section 7 of the franchise ordinance it had the right to charge a minimum of one dollar a month as a reasonable charge and the average current rate in North Missouri cities and towns. Relator seeks by mandamus to compel the light company to serve him at the twelve-cent rate. Held, that when the rates for the five-year period were readjusted under the authority given by section 7, the rates thus fixed were controlling for that period, and evidence of other and different rates — of the average minimum rate in North Missouri towns, for example — is not admissible. Relator’s rate should be twelve cents per kilowatt hour.
    3.-:-: Reasonableness of Rate: Constitutional Question. When a public service' company voluntarily agrees with the city as to rates, it cannot thereafter successfully contend that the rates thus fixed are unreasonable or confiscatory.
    Appeal from Carroll Circuit Court. — Hon. John P. Butler, Judge.
    Affirmed.

      Jones & Conhling for appellant.
    (1) Tire court erred in excluding legal and competent testimony offered by appellant, and by making its finding in favor of relator. Both the town of Car-rollton and appellant are bound by and governed by the provisions of ordinance 32. Under the provisions •of section 7 of said ordinance the defendant had a right to charge for a minimum service the rate that is charged for like services in North Missouri cities and towns. The contract made by the arbitrators and offered in evidence, prescribes a maximum service of 12 cents per kilowatt hour which, of course hinds both parties as to the maximum rate, but being silent as to a minimum rate, then, of course, to ascertain what the minumum rate shall be, recourse must be had to the franchise ordinance to determine what the minimum rate shall be, and when we look to the franchise ordinance as our guide,_ it provides: “The prevailing average current rates for like service in North Missouri cities and towns, shall be the rates adopted at the end of each five years.” The contract does not forbid appellant from establishing a reasonable minimum rate; that is, the' average prevailing current rates in North Missouri cities and towns, as provided by section 7 of said ordinance offered in evidence. To compel it to do so, would be an express violation of section 20, article 2 of the Constitution of Missouri, in that it would take defendant’s private property for private use without due compensation and would be in violation of section 21 of article 2 of the Constitution of Missouri and of section 1 of article 14 of the Amendments to the Constitution of the United States, in that it would be to take and deprive defendant of its property, franchises and privileges without due process of law and would be depriving it of the equal protection of the laws.

      Busby & Busby for respondent.
    The court did not err in sustaining objections to questions asked witnesses Lozier and Summers. The proffered testimony was incompetent and inadmissible. Section 7 of the original franchise of August 9, 1892, provided that the rates for lighting service to both the town and private consumers should be revised and changed at the end of each period of five years by arbitration, and that the new franchise agreement of March 13, 1908, was made in pursuance of this original agreement, and that it was a full and complete change and revision of all rates for light service to both the town and private consumers for a period of five years from February 1, 1908, to February 1, 1913, and it was not alleged or claimed by appellant that there was any fraud or mistake in the execution of the new franchise agreement, but the due execution of the new ag’reement was admitted, and the proffered testimony was therefore incompetent as an attempt to vary and control the new written agreement by oral testimony and outside matters. Appellant pretends to claim that it had the right at the time of removing its lighting service from respondent’s residence to make a minimum charge of one dollar per month for incandescent light service under the following clause in section 7 of the original franchise, to-wit: “The prevailing average current rates for like services in North Missouri cities and towns shall be the rates adopted at the end of each five years,” but this clause was simply to serve as á guide for the arbitrators in changing and revising the rates at the end of each five-year period, and, of course, when the arbitrators changed and revised the rates on March 13, 1908, and agreed to the new schedule of rates for the succeeding five years mentioned in the new agreement, then this clause as well as all other parts of the original franchise was merged into and swallowed up and superseded for a term of five years by the new agreement. Section 5 of the new agreement provides that appellant should furnish meter free and incandescent light service at a rate of twelve (12) cents per kilowatt hour, and this provision covered all charges that defendant might make, and defendant had no more right to demand a minimum charge of one dollar per month than any other rate not called for by the new contract.
   WILLIAMS, C.

This is a proceeding by mandamus, instituted in the circuit court' of Carroll county, Missouri, to compel the defendant Water, Light Company of Carrollton to connect its electric lighting system with relator’s residence, and to furnish him with incandescent light service at his said dwelling at the ordinance or franchise agreement rate.

There is very little dispute as to the facts’ involved. The defendant company is the successor of the original grantee in a certain franchise duly granted by the city of Carrollton, and ratified by the voters of said city on the 29th day of August, 1892. Said franchise granted to the grantee therein and its' successors and assigns, for a term of twenty years, the right to erect and maintain in the streets, alleys and public places of said city, its wires, poles, appliances and structures, for the purpose of supplying electric light and power to the inhabitants of said city, prescribed certain rules and regulations not pertinent to the discussion here, and fixed certain rates to be charged by said company for its services in furnishing and supplying its electricity. The rates provided by said franchise were not fixed for the full term of the franchise, but a provision was made in said ordinance whereby the rates could be readjusted every five years. Said provision is contained in'section 7 of the ordinance, which section reads as follows:

“Sec. 7. It is further agreed that the rates herein given to the town of Carrollton and private consumers shall be subject to revision and change at the end of five (5) years in the manner herein provided, except that said rates shall never be increased more’ than ten per cent above the present rates. The mode of such revision shall be by arbitration, by a board to consist of two members, one to be appointed by the town of Carrollton, and the other to be appointed by the Missouri Water and Light Company. Any disagreement between them shall be referred to the circuit court of Carroll county, Missouri, on the petition of either party to this contract. The prevailing average current rates for like services in North Missouri cities and towns shall be the rates adopted at the end of each five years.”

Acting- under the provisions of the above section of the ordinance, the city of Carrollton and the defendant- company appointed their respective arbitrators to act as a board of arbitrators to agree upon, readjust and fix the rates to be charged by defendant for the five-year period beginning February 1, 1908. The board of arbitrators thus selected agreed upon the -rates to be charged during this period, and said contract was, on March 13/ 1908, mutually confirmed and ratified by the said city and defendant. That portion of the rate agreement thus mutually agreed to, and affecting the controversy in suit, is as follows :

“Fifth. Incandescent lights and power to private consumers (meter to be furnished free by Water, Light & Transit Company), all day and all night service, twelve (12c) cents per kilowatt hour, with the following discounts if paid on or before the fifth of each month: Bills under ten ($10) dollars, ten per cent (10 per cent); over ten ($10) dollars and not exceeding fifteen ($15) dollars, fifteen (15) per cent; over fifteen ($15) dollars and not exceeding twenty ($20) dollars, twenty (20) per cent; over twenty ($20) dollars, and not exceeding twenty-five ($25) dollars, twenty-five (25) per cent; over twenty-five ($25) dollars, thirty (30) per cent.”

On or about May 1, 1908, relator, who had for some time been using and paying for defendant’s incandescent light service in his dwelling house, went to defendant’s office to pay his light bill, which was due on the first of said month. Pie was there presented with a bill or statement amounting to one dollar. The sum which relator owed at this time, if his bill is to be determined by the amount of electricity actually used, at twelve cents per kilowatt hour, was fifty-four cents. He refused to pay the dollar, but did offer and tender the sum of fifty-four cents, which tender was refused by defendant company, the company, through its agent, explaining to him that it never charged less than one dollar, less ten per cent discount, for any month, whether the electricity consumed amounted in price to that sum or less. Later, the relator still refusing to pay more than fifty-four cents, the defendant, on May 12, 1908, disconnected its service from his dwelling and removed its meter therefrom. Shortly thereafter, relator made written demand upon the defendant to replace its meter and connect his said dwelling house with said electric service, and furnish him such service at the rate of twelve cents per kilowatt hour, and tendered the sum of $5 to be used by defendant in payment of any electricity which he had used or in the future might use. Defendant failing to comply with his said written demand, he instituted this proceeding.

There is no question raised or urged as to the sufficiency of relator’s pleadings, and it is not necessary that they should be copied here. Defendant in its return to the alternative writ pleads the ordinance of August 29, 1892, and especially section 7 thereof, and further alleges in effect that the one dollar per month minimum charge is the average current rate for electric light service in North Missouri cities and towns, and that same is a reasonable charge, and that defendant is legally entitled to make such minimum charge under the provisions of said section 7; that, to justify defendant in making the necessary expenditure for meter, transformer, wire, etc., for the purpose of furnishing current and light for private residents, it is necessary that each private residence consumer consume at least one dollar’s worth of electricity per month, and to require defendant to furnish such service for less than one dollar minimum charge per month would be unfair and confiscatory of defendant’s franchise and privileges thereunder; that to require defendant to furnish such service for a less charge than a dollar per month minimum charge, would violate (a) sections 20 and 21 of article 2 of the Constitution of Missouri, and (h) article 5, and section 1 of article 14 of the Amendments to the Constitution of the United States. For further return, defendant denied each and every allegation contained in the petition.

Relator’s reply to defendant’s return was a general denial, except that it admits the granting of the ordinance and that defendant was the successor of the grantee in said ordinance, and further avers that the rates under the original ordinance were changed and re-established by the rate agreement of March 13, 1908, which is pleaded in the petition.

Defendant offered to prove by witness Lozier that he was acquainted with the prevailing current rates in North Missouri cities and towns, and that the average rate for minimum service was one dollar per month. Defendant also offered to prove by witness Summers, an experienced electrician, that the service could not be furnished for a less rate than a miniifium charge of one dollar per month; that a lower rate would be unreasonable, unprofitable and confiscatory, and that defendant, since it owned 'and operated the electric light plant, had collected a minimum charge of one dollar per month. The offer of the testimony of both said witnesses was, upon plaintiff’s objection, refused by the court.

The court found the issues in favor of relator, and entered a decree ordering that a peremptory writ of mandamus issue against the defendant, directing defendant to restore the meter, connect the lighting system with relator’s dwelling, and thereafter to furnish relator with incandescent light service at his dwelling at the rate of twelve cents per kilowatt hour, as provided by said rate agreement of March 13, 1908.

Defendant filed an affidavit in the circuit court asking for an appeal to this court, but the trial court granted an appeal to the Kansas City Court of Appeals. After the cause had reached the Kansas City Court of Appeals, the same was, upon appellant’s motion filed in that court, transferred to this court, on the ground that a constitutional question was involved. After the case was transferred here, respondent filed a motion in this court to have the case remanded back to the Kansas City Court of Appeals. This last motion was by the Court in Banc, on February 2, 1910, overruled.

Appellant contends that the trial court erred, first, in refusing to allow the appeal to the Supreme Court on account of constitutional questions involved; second, in refusing to admit, legal and competent testimony offered by appellant; third, in rendering judgment in favor of relator.

OPINION.

I. The first assignment of error is now removed from the case. The fact that the case is here makes unnecessary further discussion as to appellant’s contention, and the ruling of the Court in Banc (entered on the 2d day of February, 1910), Overruling plaintiffs motion to remand the cause to the Kansas City Court of Appeals, is as to the jurisdictional question res acljuclieata, and we will therefore proceed to the discussion of the merits of the case without further comment on the question of jurisdiction.

II. As to the second assignment of error, appellant’s contention is, that the prevailing average current rates for like service in North Missouri cities and towns was a dollar per month minimum charge or rate, and that the parties to this suit are bound by that portion of section 7 of the original ordinance which provides: ‘ ‘ The prevailing average current rates for like service in North Missouri cities and towns shall he the rates adopted at the end of each five years.” Appellant further contends that in the above situation it had a right to make proof of the rates in North Missouri cities, and that the court erred in refusing the offer of the testimony of witness Lo-zier. We cannot admit appellant’s contention. Section 7 of the original ordinance did nothing more than prescribe a method for readjusting rates at the end of each five-year period, and to announce a guide or standard that should be used or applied when rates were to be readjusted. But when the rates for the five-year period were readjusted under the authority given by said section seven, with the mutual consent of the city and the defendant company, as evidenced by the contract between the city and the defendant company of date March 13, 3908, the rates thus fixed by said contract were controlling for the period covered thereby, and it would not be proper in this proceeding to admit evidence of other and different rates. Appellant in,its argument admits that the contract referred to binds both parties as to the maximum rate, but insists that; since the contract is silent as to the minimum rate or charge, it is proper to show by outside evidence ■what the minimum rate or charge should be.

The contract is-not silent with reference to rates to be charged for the service to be furnished consumers like the relator. It provided that as to incandescent light and power for private consumers, the defendant company should furnish the meter at its own expense and charge a rate of twelve cents per kilowatt hour. If appellant’s contention were adopted, it would in effect, whenever applied, destroy the maximum rate, for the reason that a minimum rate or charge (the term is apt to be confusing) is never used save and except when it exceeds the sum total of the charge for service under the maximum rate.

This is not a proceeding to determine the reasonableness of rates, but merely to ascertain or determine what rates are or were in force, and then compel the enforcement of the service at such rates. It would therefore not be germane to the issues here to enter upon a discussion of the reasonableness or unreasonableness of a minimum charge or rate. "What we do decide in this case is, that the contract dated .March 13, 1908, is controlling as to the rate which defendant was entitled to charge the relator at the time this suit was instituted and tried, and since said contract did provide a definite rate for the kind of service involved in this suit, and made no provision for a minimum charge, none can be brought to the aid of appellant as a defense in the present proceeding.

In the case of Louisville Gas Co. v. Dulaney & Alexander, 100 Ky. 405, the court, in refusing to allow the gas company to charge a rate similar to the one claimed by appellant in this case, said:

“Presumably the company was aware, when it obtained its charter and established its monopoly, that there would be small consumers as well as large ones, and there would be less profit in furnishing the one class than the other, but it did not on that account reject the charter or obtain the right to add to the price of the small consumer’s bill.”

III. What has been said above dispenses in a large measure with the discussion of the third assignment, e. g., that the court erred in rendering judgment in favor of relator. Even if this were a case where the rate had been forced upon the appellant, and it was contesting the validity or reasonableness of the rate, and the evidence which was offered and refused had been admitted, yet the showing would not have been sufficient to cause the court to interfere. The correct rule in this regard is well -stated in McQuillin on Municipal Corporations, vol. 3, sec. 1751, p. 3741, as follows:

“It is immaterial that the rate is too low as to some customers, and hence a rate is not unreasonable merely because' there would be a loss as to smaller consumers. The better rule seems to be that the company is not entitled to a reasonable profit upon each transaction, but that the regulation of rates is valid although it precludes a reasonable profit at all as to particular items of the business where a fair return will result from the rates as a whole.”

Much more applicable is the above language to the case at bar; for in this case defendant gave its consent, and voluntarily entered into the rate agreement with the city. When a public service company voluntarily agrees with the city as to rates, it cannot thereafter successfully contend that the rates thus fixed are unreasonable or confiscatory. [4 McQuillin on Municipal Corp., sec. 1741.]

From the foregoing observations it becomes- apparent that none of the constitutional guarantees invoked by appellant are violated by reason of the enforcement of the rate agreement which it voluntarily executed. The judgment of the circuit court is affirmed.

Roy, C., concurs.

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

All the judges concur, except Faris, J., who does not sit