author: WALKER, J.

text:
    BALLEW LUMBER & HARDWARE COMPANY et al., Appellants, v. MISSOURI PACIFIC RAILWAY COMPANY et al.
    Division Two,
    June 23, 1921.
    1. PLEADING: Jurisdiction: Demurrer. Upon demurrer to the petition charging that the court lacks jurisdiction, the defect which precludes the court from hearing and determining the case must appear on the face of the petition.
    2. -: -: General and Special. A court may have jurisdiction of the subject-matter of a class of cases, yet have no jurisdiction to hear and determine the particular case under consideration.
    3. -: -:-: Shipper’s Claims: Overcharges: Misjoinder: Equity. Conceding that the obligations of contracts made with shippers by a railroad company which has transferred its assets to another survive, and that by appropriate actions they may enforce their claims against any property belonging to the company which has passed into the hands of another than a bona-fide purchaser for value, still it does not follow that the court has jurisdiction to hear and determine in one suit in equity the claims of all such shippers, arising out of different contracts, and requiring different proof.
    4. -: Equity: Joinder of Different Causes and Parties. The joinder of parties as plaintiffs is permitted when the • cause of action is common to all, and the right under which they claim is the same as to each, and the complaint of all is against the same defendant for the doing of acts which affect all alike; but the joinder in one suit in equity of legal claims for overcharges arising out of several contracts made by the respective plaintiffs with the defendant, identical only in the fact that they are all shipment contracts, and differing as to places and times of execution, is not permitted.
    5. -: -: -: Multiplicity of Suits. Equity will not interfere to prevent a multiplicity of suits unless the questions involved are of equitable cognizance. Community of interest in the questions of law and fact presented, or in the form or kind of relief demanded, is not enough.
    Appeal from St. Louis City Circuit Court. — Eon. Karl Kimmel, Judge.
    Affirmed.

      T. L. Philips and E. T. & C. B. Allen for appellants.
    (1) The sale of the property of the insolvent Missouri Pacific Railway Company under a consent decree, in pursuance of a plan and agreement of reorganization of said company, in which there was reserved for the stockholders of the old company a stock interest in the new company, was and is in law a fraud upon the rights of the appellants, and as to them is void. ' Mumma v. Potomac Co., 8 Pet. 281; Railroad Co. v. Howard, 7 Wall. 392; Scammon v. Kimball, 92 U. S. 367; Wabash v. Ham, 114 U. S. 594; Louisville Tr. Co. v. Railroad, 174 U. S. 674; Northern Pacific v. Boyd, 228 U. S. 482; Kansas City Southern v. Trust Co., 240 U. S. 166; Central Impr. Co. v. Cambria, 210 Fed. 696,- 201 Fed. 822; Western Union v. Trust Co., 221 Fed. 549. (2) That shippers are entitled to recover in equity overcharges exacted under duress and in violation of a valid statute has been unanimously held. Barker v. Railroad Co., 265 Mo. 682; White v. Delano, 270 Mo. 16; Bellamy v. Railroad, 220 Fed. 878; Love v. North American Co., 229 Fed. 103; Railroad v. McKnight, 244 U. S. 368; Arkadelphia Milling Co. v. Railroad, 249 U. S. 134. (3) Where it is alleged that a judgment and execution would be fruitless and involve useless and unnecessary expense, a creditor may maintain a bill to impress an equitable trust upon the assets of the insolvent company without first obtaining a judgment at law. 12 Cyc. 711; Goldman Comn. Co. v. Williams, 211 Fed. 537; Johnson v. Powers, 139 IT. S. 156; Sage v. Railroad, 125 IT. S. 361; Tally v. Curtain, 54 Fed. 4; Schofield v.,Ute Coal Co., 92 Fed. 269; Burnham Co., v. Smith, 82 Mo. App. 35. (b) Where the fund sought to be subjected to the payment of the owners’ debts is a trust fund for the payment of debts, or the complainant has a lien on the fund or property, the defendant creditor need not first establish his claim by judgment at law. 12 Cyc. 12; Woolen Mfg. Co. v. Kamp.e, 38 Mo. App. 229; Goldman v. Williams Co., 211 Fed. 530; Coleman v. Iiagey, 252 Mo. 127.

      Edward J. White, James F. Green and E. E. Larimore for respondents.
    (1) It appears on the face of the petition that the Circuit Court of the City of St. Louis was and is without jurisdiction of the subject of the action. Smith v. Mo. Pac. Railroad Co., 266 Fed. 653; State ex rel. v.Davis, 190 S. W. 966; State ex rel. v. Williams, 221 Mo. 258; Miller v. Assurance Co., 196 S. W. 449; Farmers’ Loan Co. v. Lake Street Railroad, 177 IT. S. 61; Stewart v. Wisconsin Central Railroad, 117 Fed. 782; Julian v. Central Trust Co., 193 U. S. 112; Lang v. Ry. Co., 160 Fed. 355. (2) It is apparent on the face of the petition that there is a defect of parties plaintiff and that several distinct and separate causes of action have been improperly united in one petition. State ex rel. v. C. & A. R. R. Co., 265 Mo. 671; Ry. Co. v. McKnight, 244 IT. S. 368. (3) The petition does not state facts sufficient to constitute a cause of action. First. Because it is not alleged that plaintiffs are judgment creditors and have exhausted their remedies at law. Public Works v. Columbia College, 17 Wall. 530; Case v. Beauregard, 99 U. S. 125; Straight v. Junk, 59 Fed. 321; Terry v. Anderson, 95 U. S. 636; Scott v. Neely, 140 U. S. 106; National Tube Works v. Ballou, 146 U. S. 523; Walser v. Seligman, 13 .Fed. 415; Guardian Trust Co. v. Cambria Steel Co., 210 Fed. 696; Atlas Nat. Bank v. Packing Co., 138 Mo. 59; Ready v. Smith, 170 Mo. 163; Coleman v. Hagey, 252 Mo. 102. Second. Because it appears from such petition that plaintiffs are guilty of laches. State Trust Co. v. Kans. Cy. P. & G. Railroad, 120 Fed. 398; Western N. Y. & P. Railroad v. Penn Refining Co., 137 Fed. 343. Third. Because it is not alleged that general creditors were not permitted to participate in the plan of reorganization attendant upon the receivership of the Railway Company, or that a fair and timely offer of participation was not made to such general creditors, but only that these plaintiffs did not participate therein. Boyd v. Northern Pac. Ry., 228 U. S. 482; K. C. So. Ry. v. Guardian Trust Co., 240 U. S. 166; Stewart v. Wisconsin Cent. Ry. Co., 117 Fed. 782; State ex rel. v. Reynolds, 209 Mo. 161. Fourth. Because it appears from the ’ allegations of the petition that the alleged overcharges, if any, do not constitute a trust fund for the benefit of these overcharges paid by plaintiffs in the ordinary course of-business as shippers over the defendant railway, and that such alleged overcharges when paid went into a common fund made up in part from other sources, the whole of which went to pay operating expenses, interest on bonds, taxes, repairs, betterments and improvements; and it does not appear from the petition that such overcharges, if any, were ever required to be kept in any separate fund or accounted for in any way, but became at the moment of payment the property of the Railway Company; was commingled with other property, and plaintiffs do not attempt in their petition to specify into what specific property such alleged overcharges went, and consequently there can be no tracing of these alleged overcharges because they never in law became trust funds. Schuyler v. Littlefield, 232.U. S. 710; Brennan v. Tillinghast, 201 Fed. 641; United States v. Bitter Root Co., 200 U. S. 474; Litchfield v. Ballou, 114 U. S. 195; State Bank v. Security Bank, 232 Fed. 849; In re See, 209 Fed. 174; In re Larkin and Metcalf, 202 Fed. 578; Gregg v. Trust Co., 197 U. S. 183; So. Ry. Co. v. Steel Co., 176 U. S. 257; Thomas v. Western Car Co., 149 U. S. 95; Crane Co. v. Trust Co., 238 Fed. 693; C. & A. R. R. Co. v. Trust Co., 225 Fed. 940; Martin Metal Co. v. Trust Co.,. 225 Fed. 961; High on Receivers (3 Ed.) sec. 394-a; Smith on Receiverships (2 Ed.), sec. 342.
   WALKER, J.

This is a suit in equity to have the transfer of the assets of the Missouri Pacific Railway Company to the Missouri Pacific Railroad Company declared a fraud upon the plaintiffs, who allege that they are overcharge claimants of the Railway Company, and for an accounting, and to impress upon the assets and. capital stock of the Railway Company in the possession of the Railroad Company an equitable lien until the amount found to be due plaintiffs and all intervenors upon an accounting, shall have been paid, and for a receiver. The petition is based upon the theory that overcharges by a carrier belong in equity to the shipper, and that the assets of an insolvent carrier constitute a trust fund for the benefit of its creditors, although they have been diverted to a reorganization company in which the stockholders of the insolvent carrier have their rights preserved. The defendants demurred on the ground of (1) a lack of jurisdiction; (2) incapacity of the plaintiffs to sue; (3) pendency of a like suit in a Federal court; (4) defect of parties; (5) improper joinder of causes of action; (6) no cause of action stated. The trial court sustained the demurrer, the plaintiffs declined to plead further, whereupon their petition was dismissed- and there was a judgment for the defendants, from which an appeal was perfected to this court.

I. In support .of the demurrer, it is averred among other thing’s that the court was without jurisdiction. To render this contention tenable it is necessary that the petition disclose the defect which precludes the court’s action. We may concede that the obligations of the contracts made by the Railway Company with the plaintiffs survive- and that they may in appropriate actions, based upon their respective claims, enforce same against any property belonging to the Railway Company which it may be shown has passed into the hands of another than a bona-fide purchaser for value, and is, therefore, held in trust for the company and its stockholders. [K. C. So. Ry. Co. v. Guardian Tr. Co., 240 U. S. 166; Northern Pac. Ry. Co. v. Boyd, 228 U. S. 482; Louisville Tr. Co. v. Railway, 174 U. S. 674; Railroad Co. v. Howard, 7 Wall. 392; Mumma v. Potomac Company, 8 Pet. 281.]

The g’eneral jurisdiction of the circuit court in cases presenting the facts stated, is, as shown by the authorities cited, well established. But more than a general jurisdiction of a class is necessary to authorize the court to hear and determine the case. By this we mean that while a court may have jurisdiction of the subject-matter of a class of suits, it does not necessarily follow that it may hear and determine the particular case submitted for its consideration. This right may be and is oftentimes dependent upon other matters, the determination of which is necessary before the court’s right to adjudicate the issues involved can be definitely ascertained. [St. Louis v. Waterman, 277 Mo. l. c. 226.] Conceding, therefore, the court’s general authority to entertain and adjudicate eases belonging to the class of that at bar, it is pertinent to consider whether any other facts disclosed by the allegations of the petition preclude the court from hearing and disposing of the case, or in short, if the allegations made impose that duty.

II. This is an equitable proceeding and the general rule applicable thereto as concerns the parties, is that all persons materially interested, whether legally or beneficially, in the outcome of the action, should he joined therein in that all those necessary to a final determination of the issues should he before the court. [Norton v. Reed, 253 Mo. 236; Breimeyer v. Bottling Co., 136 Mo. App. 84; S. W. Bell Tel. Co. v. State, 75 Okla. 42, 181 Pac. 487; Florida Phosphate Co. v. Anderson, 50 Fla. 501; 16 Cyc. 181.]

Our code gives express approval to this rule as applied to all classes of cases, as follows: “All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article.” [Sec. 1157, R. S. 1919.]

An interpretation of the rule in other jurisdictions and of the statute which may be measured by a like canon of construction, is that the joinder of parties is permitted when the cause of action is common to all of the plaintiffs and the right under which they claim is the same as to each, and the complaint of all is against the same defendant for the doing of acts which effect all alike. [Rafferty v. Cent. Tr. Co., 147 Pa. St. 579, 30 Am. St. 763; Jones v. Rowbotham, 47 N. J. Eq. 337, 19 L. R. A. 663.] Bo the allegations of the petition meet the requirements of this modification of the rule and come within the permissive purview of our statute? As we have heretofore stated this is an action sounding in equity to impress property with a trust and recover alleged overcharges. It is made' up of legal claims arising out of several contracts made by the respective plaintiffs with the defendant Eailway Company. Only in a general way is the character of the transactions identical, viz.: they are contracts for shipments. Otherwise, neither as to places or times of execution of the contracts, or of performance of the duties imposed are they the same. They lack, therefore, that general uniformity as to their essential features necessary to authorize a joinder of the plaintiffs, in equity, under the rule, unless it be claimed that this procedure is necessary and authorized to avoid a multiplicity of suits.

This question has been exhaustively considered by the Supreme Court of Mississippi, in Tribette v. Ill. Cent. Ry. Co., 70 Miss. 182, 35 Am. St. 642, l. c. 644, where the court in ruling on a demurrer to a petition in an action in which a number of plaintiffs were joined on the sole ground that their several actions at law involved the same matters of fact and law without any community of interest between them, held in effect, that: “Where each of several may proceed or be proceeded against in equity, their joinder as plaintiffs or defendants in one suit is not objectionable; but this is a very different question from that, whether, merely because many actions at law arise out of the same transaction or occurrence, and depend on the same matters of fact and law, all may proceed or be proceeded against jointly in one suit in chancery; and it is believed that it has never been so held, and never will be, in cases like those here involved. Where each of several parties may proceed in equity separately, they are permitted to unite and make common cause against a common adversary, and one may implead in one suit in equity many who are his adversaries, in a matter common to all in many cases, but never when the only ground of relief sought is that the adversaries are numerous, and that the suits are not in themselves matter of equity cognizance. . . . There must be some recognized ground of equitable interference, or some community of interest in the subject-matter of controversy, or a common right or title involved to warrant the joinder of all in one suit; or there must be some common purpose in pursuit of a common adversary, where each may resort to equity in order to be joined in one suit; and it is not enough that there 'is a community of interest merely in the question of law or of fact involved.’ ”

From this general discussion of the subject in the Tribette case, the following general rule may be deduced: That equity will not interfere to prevent a multiplicity of suits unless the questions involved are of equitable cognizance. The mere fact that there is a community of interest in the questions of law and fact presented by a given controversy, or in the kind and form of relief demanded by or against each of several individuals, will not warrant such interposition. In addition to cases cited in the Tribette case, the curious will find a like doctrine announced in an extended note to Woodward v. Seely, 11 Ill. 157, 50 Am. Dec. 445. The rule is even more succinctly stated in Murphy v. Mayor, 6 Houst. 108, 22 Am. St. 345 and note, and Southern Mich. Lbr. Co. v. McDonald, 57 Mich. 292, in which it is said: “That equity will not entertain jurisdiction when the only object is to obtain a consolidation of actions, or to save the expense of separate actions, or where the claim of right rests, on a mere question of law.”

As we said in State ex rel. Barker v. C. & A. R. R. Co., 265 Mo. l. c. 686, each claim for overcharges is a suit within itself. We have here, as in that case, separate and distinct causes of action in a single proceeding, the establishment of each of which will require different proof. Although in the Barker case, the facts are in many respects not parallel with those at bar, the general equitable rule there invoked is applicable here to the effect that, although persons similarly situated may sue in the name of a class, the rule, has no application where the establishment of their respective claims is dependent upon different proof.

III. In holding against the plaintiffs’ collective right to sue, there is involved an affirmative ruling as to the misjoinder and defect of parties which are characteristics o.f plaintiffs’ incapacity, as sought to be maintained in this proceeding.

The pendency of a like suit in the Federal conrt is also urged as a ground of demurrer. This contention would he entitled to consideration so far as such priority of jurisdiction is disclosed by the petition, provided our holding as to the incapacity of the plaintiffs to sue in the manner herein, did not, as it does, result in an affirmance of the ruling of the circuit court. This contention, therefore, as well as others urged in the briefs in support of and against the.demurrer, does not demand a review.

The judgment of the circuit court is, therefore, affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE STATE ex rel. RUSSEL E. BURTON, Appellant, v. DAVID BAGBY, Probate Judge.
    Division Two,
    June 23, 1921.
    1. JUDGMENT: Conolusiveness: Attack by Mandamus: Will and Codicil. Where the probate court admitted a will to probate, but rejected a codicil attached thereto on the ground that it had not been legally attested, and in a suit to contest the will in the circuit court the codicil was not copied into the petition, offered in evidence or referred to in the judgment sustaining the will, a subsequent suit by mandamus cannot be maintained in the circuit court by a devisee named in the codicil to compel the probate court to probate or reject the codicil, since the recitals of the judgment sustaining the will are conclusive.
    2. -: -: -: Jurisdiction: Collateral Attack. If the right of a devisee named in the codicil to have the codicil probated by the probate court which had rejected it was not an issue in the suit brought in the circuit court by a contestant of the will, wherein the will was sustained and the decree made no mention of the codicil, that question was not removed from the jurisdiction of the probate court, and its judgment rejecting it cannot be assailed by mandamus brought by the said devisee to compel the probate court to probate or reject it. If jurisdiction of the probate court over the rejected codicil was removed by the suit to contest the will, that court has no more jurisdiction now than it had after the suit to contest the will had been begun in the circuit court. But whether or not the jurisdiction over the codicil was removed by the contest suit, the judgment of the probate court rejecting the codicil from probate, being regular on its face, imports verity until set aside by contest or a direct proceeding, but cannot be set aside by a mandamus suit to compel the probate court to probate or reject the codicil.
    Appeal from Howard Circuit Court. — lion. Samuel Davis, Special Judge.
    Affirmed.

      A. H. Waller and Paul P. Prosser for appellant.
    (1) Relator was entitled to prove the facts averred in his petition and set forth in the alternative writ to which respondent made return. (2) Plaintiff’s petition stated a cause of action, and respondent’s return to the alternative writ admitted every material fact averred in said petition and alternative writ, hence the court erred in dismissing said petition. (3) It positively appears from the face of the record that 'the codicil to the will has not been legally rejected by the probate or circuit court. (4) The order and judgment of the probate court rejecting said codicil, made on the 15th day of July, 1902, is a nullity, because the jurisdiction of the subject-matter, the will and codicil, had been divested out of said probate court, and transferred to the circuit court by virtue of the contest of said will and codicil begun-five weeks prior thereto. State ex rel. v. G-uinotte, 156 Mo. 519; State ex rel v. Imel, 243 Mo. 186.

      John Cosgrove and R. M. Bagby for respondent.
    (1) The respondent was judge of the Probate Court of Howard County and would have to have acted judicially to have made the order required of him by the alternative writ. A judicial officer cannot be compelled to render a particular judgment. He cannot be coerced to render a particular judgment or to rectify an erroneous one. State ex rel. Hyatt v. Smith, 105 Mo. 6; State ex rel. Flick v. Reddish, 148 App. 715; Stowe v. Stowe, 140 Mo. 594; Stephens v. Larwill, 110 Mo. App. 159. A will cannot be probated again after the court has acted upon the application' to probate. 40 Cyc. 1234. (2) Mandamus will not lie where the plaintiff has another remedy. Jamison v. Lenore, 126 Mo. 413; State ex rel. Bartly v. Filcher, 39 Mo. 388; State ex rel. v. Nerry, 105 Mo. App. 462. (3) If suspension of the jurisdiction of the probate court affords ground for mandamus, mandamus would not lie in this case for the reason that the application for the writ of mandamus did not set out the petition in the will contest case, and the contest judgment which appellant made a part of his application for the writ shows on its face that the codicil was not in the contest petition nor produced to the court in the contest. Suspension of the jurisdiction of the probate court over that instrument cannot be shown by ignoring the contest petition where the contest judgment does not mention that instrument. Benoist v. Murrin, 48 Mo. 54. There being no contest as to the codicil, the probate court acted within its jurisdiction in rejecting the codicil. Under the pleadings and evidence, appellant was not entitled to the writ of mandamus and the trial court did not err in refusing to make said writ permanent. State ex rel. v. Neville, 110 Mo. 345; State ex rel. v. Albin, 44 Mo. 346.
   WALKER, J.

This is an appeal from a judgment of the Circuit Court of Howard County, dismissing a proceeding by mandamus which had been instituted in that court against the probate court of that county to compel it to probate or to reject the codicil of a will.

One Benjamin E. Nance died testate in Howard County, in May, 1902. The relator, appellant here, was named as one of the legatees in the will and as a devisee in the alleged codicil.” At the time, he was an infant of tender years, bnt attained his majority in August, 1938.

On June 3d, 1902, the will of the testator and the codicil were presented in vacation to the judge and ex-officio clerk of the Probate Court of Howard County for probate, and the following entry of record was made in regard thereto: “I, J. T. Smith, judge and ex-officio clerk of probate within and for the county of Howard and State of Missouri, having examined the foregoing instrument of writing- purporting to be the last will and testament of Benjamin E. Nance, deceased, late of Howard County, Missouri, and having heard the testimony of C. I. Smith, Harry Gr. Herndon, Wallace Es-till, Jr., and W. J. Boggs, subscribing witnesses to said will, and the testimony of J. H. Herndon and J. E. Chancellor, subscribing witnesses to the codicil to said will, do declare said two instruments of writing to be the will of said Benjamin E. Nance, deceased, late of Howard County, Missouri.”

On June 9th, 1902, a daughter of the testator brought a suit in the Circuit Court of Howard County to test the validity of the will and to have same probated or rejected. At the Novmber term, 1902, of said court, the issues were made up and the cause submitted to the court for determination. The court found in favor of the proponents of the will and incorporated a copy of the same without the codicil in its decree, in which it was declared that said will as copied and set forth therein was the will of the testator. A copy of this decree was ordered certified to the Probate Court of Howard County.

While said suit was pending in the Circuit Court of Howard County, the following order was, on the 15th day of July, 1902, entered of record in term time, by said probate court:

‘ ‘ The court approves the probate of the will of said . deceased on the testimony of C. I. Smith, Harry G-. Herndon, Wallace Estill, Jr., and William J. Boggs, subscribing witnesses indorsed thereon, and declares said will established as the last will and testament of said Benjamin E. Nance, deceased, late of Howard County, Missouri, but rejects the codicil of said will by reason of the fact that John H. Herndon, one of-the subscribing witnesses, did not attest said will as a witness in the presence of the testator, nor in the presence of the other subscribing witness.”

In May, 1919, Russel E. Burton, the relator herein, who had attained his majority,-filed a petition in the Howard County Probate Court, in term time, asking that testimony be heard to authorize the probating of the codicil of the will; after hearing the testimony of the subscribing witnesses and others, the court dismissed the petition. A motion to set aside the order of dismissal was made and overruled. The action at bar was thereupon, on July 25th, 1919, brought in the Circuit Court of Howard County to compel the probate court to either probate or reject the codicil. The probate judge filed a return thereto, setting up the probating of the will and codicil by the judge and ex-officio clerk of said probate court in vacation, and the subsequent order of said court rejecting said codicil, and for further return stated that the codicil was not taken out of the jurisdiction of the probate court by the contest proceedings in the circuit court; that the codicil was not .copied in the contest petition, nor produced in court at the hearing of the cause; and that the recitals of the judgment rendered therein are conclusive in law against everything except a new trial or an appeal; and further pleading alternatively, stated that if the codicil was not removed from the jurisdiction of the probate court by the contest proceeding the judgment rejecting the codicil could not be questioned in this action; and if the codicil was removed by the contest proceeding the probate court has no more jurisdiction now than in 1902, and that the judgment rendered by the latter court in July, 1902, imports verity until set aside by a direct proceeding. After alleging tbe lack of authority to probate á codicil separate and apart from the will, it is further stated in the return that the circuit court has no power to compel the probate court to vacate and annul its judgment dismissing plaintiff’s petition, because that judgment has already been rendered; and that mandamus does not lie to vacate, a judgment already entered, but only to compel the inferior court to render a judgment when under a clear legal duty it refuses so to do.

In October, 1919, the cause coming on for hearing in the circuit court, the respondent probate judge objected to the admission of any testimony, which objection was sustained and the court dismissed the relator Burton’s petition, or in effect denied the peremptory writ prayed for. After a formal finding of the facts the court, in dismissing the petition, entered of record the following order:

“"Wherefore, the court doth find that if both the said will and the said codicil were, contested in the Circuit Court of Howard County in the proceeding brought in said court as aforesaid, the judgment and mandate of said circuit court on file in this court are by statute final, and this court has no jurisdiction to entertain relator’s petition; that if the said codicil was not contested but only the will, the judgment of this court in term, on file, rejecting the codicil, was both regular and binding, and this court has no jurisdiction to reopen the case. One or the other alternative is necessarily true. Hence the petition is dismissed.”

I. Under the facts as set forth in this record, it is not deemed necessary to discuss the somewhat technical questions interposed by the respondent in opposition to the issuance of the writ herein, viz.: as to whether this proceeding seeks to require the probate court to enter a particular judgment; or if it is sought to have the court set aside a judicial act; or if the relator has another remedy that he should have resorted to. In our opinion the matter at issue is clearly defined and conclusively determined in the judgment of the circuit court dismissing the relator’s petition and thus denying the peremptory writ. That judgment, it appears, is sustained by the record; the authenticity of which does not admit of question. The reasons in support of the judgment flowing from those facts, are so elementary in their character that .their statement, without moré, demonstrates their correctness. They are as follows:

The codicil so far as the record discloses was not made, an issue in the suit to contest the will. It was not copied into the petition in that suit; offered in evidence or referred to in the judgment. The recitals of the judgment aró conclusive. If, therefore, the question as to the right of the relator to probate the codicil was not an issue in that suit it was not removed from the jurisdiction of the probate court and the judgment of the latter rejecting it from probate cannot be assailed in this action. If jurisdiction over the codicil by the probate court was removed by the suit to contest the will, that court has no more jurisdiction now than it had after the commencement of the will contest in the circuit court, and the writ if made peremptory in this proceeding would be futile. But, whether the jurisdiction over the codicil was removed or not, the judgment of the probate court in July, 1902, rejecting the codicil from probate, being regular on its face, imports verity until set aside by contest or direct proceedings, but not in the manner here sought to be invoked. Either of these reasons are sufficiently cogent to sustain the action of the circuit court in dismissing the relator’s petition and denying the peremptory writ, and its judgment in that behalf is, therefore, affirmed.

All concur.


author: MOZLEY, C. PER CURIAM:

text:
    BERTHA MAGILL v. BOATMEN’S BANK, Appellant.
    Division Two,
    June 23, 1921.
    1. DORMITORY OR CLUB HOUSE: Fire Escapes. A building seven stories high, occupied by a general athletic club, in which the members and their guests lodged and slept, in which a large kitchen was maintained in which the members and their guests ate their meals, and in which were maintained also a gymnasium and swimming pool, and in which at the time it was destroyed by fire approximately one hundred persons were asleep in different rooms, plaintiff and her husband on the fifth floor, was a dormitory, within the meaning of the statute (Sec. 10668, R. S. 1909) which provided that “all buildings of non-fire-proof construction three or more stories in height, used for manufacturing purposes, hotels, dormitories, schools, seminaries, hospitals or asylums, shall have not less than one fire escape for every fifty persons or fraction thereof for whom working, sleeping or living accommodations are provided above the second story.”
    2. EVIDENCE: Hearsay: Statement of' Patient to Physician of Prior Condition. The physician, as an expert, is not competent to testify what statements the plaintiff made to him as to the loss of blood and pains suffered prior to the time she consulted with him. In giving his opinion he may testify not only what he observed, but what the patient told him about her present symptons, but he cannot testify what she told him respecting her past physical condition, for tb,at is mere hearsay.
    Appeal from St. Louis City Circuit Court.— Eon. Frank Landwehr, Judge.
    Reversed and remanded.

      Lehmann & Lehmann, Abbott, Faimtleroy, Cullen & Edwards and Curlee é Eay for appellant.
    (1) The building was not a hotel or a dormitory, but was a “club house,” for which the number of fire escapes should be determined by the Building Commissioner of the City of St. Louis. Hence the plaintiff in resting her action upon the theory that the building was a hotel or dormitory, proceeded upon the wrong theory and was not entitled to go to the jury. R. S. 1909, secs. 10666, 10667, 10668; Metzler v. Terminal Hotel Co., 135 Mo. App. 410; 4 Words & Phrases, p. 3349; 2 Words & Phrases. (Second Series), p. 213; Hillsdale Vv Rideout, 46 N. W. 373, 82 Mich. 94; Commonwealth v. Pomphret, 137 Mass. 564, 50 Am. Rep. 341. (2) The evidence herein conclusively shows that plaintiff did make her escape from the building by one of the fire escapes provided by the defendant and that whatever injuries she sustained were the result, not of inadequate fire escape equipment, but of the fire itself, for Avhich defendant was not responsible and should not be held liable. The evidence of Doctor Fry detailing what plaintiff said she had suffered prior to his examination of her, was hearsay and highly prejudicial. Holloway v. Kansas City, 184 Mo. 39; Aronovitz v. Arky, 219 S. W. 620’; Poumeroule v. Cable'Co., 167 Mo. App. 539; Gribler v. Railroad, 129 Mo. App. 103; Freeman v. Insurance Co., 195 S. W. 548; Brady v. Traction Co., 140 Mo. App. 421.

      Leonard, Sibley & McBoberts for respondent.
    (1) The building was a hotel Qr dormitory, or both, within the meaning of the fire escape laws. Secs. 10666 to 10671, R. S. 1909; Sec. 421, Revised Code of St. Louis 1912; Sec. 94, Municipal Code of St. Louis 1900; Sec. 336> Revised Code of St. Louis 1912. (a) This building was expressly held by this court to have been a dormitory in cases which grew out of the same fire in this same building. Ranus v. Boatmen’s Bank, 214 S. W. 156; Newell v. Boatmen’s Bank, 216 S. W. 918. (b) The fire escape laws are to be liberally construed to effectuate their, salutary purpose. Tall v. Snow, 201 Mo. 521. (c) Definitions of a dormitory: Words & Phrases; 14 Cyc. 868. (d) Definition of a gnest: Bunn v. Johnson, 77 Mo. App. 596. (e) A member of an incorporated club may be a “guest” of the club. Harvey v. Mo. Athl. Club, 261 Mo. 576. (2) Defendant’s injuries were due directly to the absence of ample legal fire escapes. The question of proximate cause is for the jury. Anderson v. Missouri G-. & C. Co., 178 S. W. 737; Power v. Railroad, 244 Mo. 1. The jury was fully instructed on the question. Defendant asked that the jury be instructed on the question and cannot now complain. (3) The testimony of Dr. Fry was properly admitted. Coghill v. Q. 0. & K. 0., 206 S. W. 912. At worst, the testimony was merely cumulative on a question not in dispute. The testimony was immaterial under the facts. It was not reversible error. Meredith v. Krauthoff, 191 Mo. App.' 149; Porterfield v. Am. Smelting Co., 210 S. W. 124.
   MOZLEY, C.

This action is one for damages which was brought against defendant in the Circuit Court of the City of St. Louis, Missouri, on January 15, 1918.

Plaintiff claims to have been injured in a fire which destroyed the Missouri Atheletic Club located in the Boatmen’s Bank Building in said city. The fire occured the night of March 9, 1914, according to the testimony.

Plaintiff’s husband was manager of said Club and she resided with him at that place. Plaintiff escaped with her life, but in a seriously injured condition, which will be referred to later.

The building was seven stories in height, and extended west from Fourth Street, on Washington Avenue, 112 feet, and north, on Fourth Street from Washington Avenue, 135 feet.

Plaintiff and her husband occupied Room Number 9 on the 5th floor, which overlooked Fourth Street. She was awakened in the early morning of the night aforesaid, and found the building enveloped in flames, densely full of smoke. Excitement, confusion and panic among those awake reigned supreme. At the time of the fire the building contained approximately one hundred other persons who were asleep, and thirty-one, unable to find means of escape, perished in the flames.

The charging part of the petition reads as follows:

“On the early morning of March 9, 1914, while she was asleep in her said room, fire suddenly broke out on or about the third floor of said building; that she immediately sought as long as-she was able in the intense heat and stifling smoke, for means of escape from said building; that because of said negligent, improper and illegal construction of said building, the flames and heat and suffocating smoke from said fire so quickly spread through all parts of said building, that plaintiff’s life was greatly imperiled and she was cut off from escape except in the manner and to her injuries, as hereinafter alleged; that said negligent, improper and illegal construction of said building was a directly contributing cause of plaintiff’s said injuries hereinafter described; that because of defendant’s failure to provide sufficient proper and legal stairways and fire escapes, and balconies and openings thereon, as required by law and as above set forth, plaintiff was forced to attempt to escape at different parts of the said building, and to remain in and about said building in the stifling heat and suffocating smoke and darkness for a long period of time, to her injuries as hereinafter alleged; that defendant’s failure to provide sufficient and legal stairways, fire escapes, balconies and openings was the direct cause of plaintiff’s said injuries.”

The petition further alleges that because of these things she was compelled to escape “through long winding hallways onto an iron stairway enclosed with corrugated iron, built outside of said building and in immediate contact therewith, without lights, and so arranged that she was unable to get off of said stairway except by coming back into the said burning building; that- the said stairway, with the corrugated iron surrounding it, was intensely hot and filled with flames and smoke escaping from the said burning building. ’ ’

Further pleads that she was compelled to “breathe into her lungs the hot, stifling smoke and air contained in said building and in said enclosed stairway; that while escaping she was insufficiently clad, was exposed to the cold wind and air, causing a severe cold and fever, which lasted for a long timp thereafter; that her feet and hands and face were badly cut with glass and other objects, and burned and blistered, and she was badly bruised over her entire body; that in escaping from said building, she twisted and turned her left ankle, that has caused her great pain ever since and will always be greatly impaired; that while escaping down said outside enclosed stairway, particles of fire and. burning material and debris fell on and against .her and she received a severe and painful blow on the face; that she had sustained a fracture of her left arm which, at the time of said fire, was bandaged and in splints; that in making her escape said bandage and splints were torn loose, which caused her said arm to swell badly and greatly, aggravate its condition and intensify the pain and suffering, all of which retarded a recovery for many months; that on account of her inexperience in seeking escape from said burning building and in effecting her escape, she received profound and intense shock to her whole nervous system, because of which she was and is and will always be, a nervous 7reck; that she was confined to her bed for a considerable time; that she is unable to sleep soundly at night; that she is excitable; that she lost thirty to thirty-five pounds in weight; that her stomach and bowels are impaired and will always be in bad condition, and she will be compelled to consult doctors and take medicines; that her eyes were rendered very weak and the use of them is permanently impaired; that her power of prolonged concentration and her memory are permanently impaired. ’ ’

She further alleges that she had destroyed in said fire jewelry, silverware, money, trunks, suitcases, handbag and wearing apparel of the value of $1700.

For all of which she prays judgment for $15,000 and costs of this action.

On objection of the defendant the count for property and money destroyed in the fire was stricken out, and the petition was amended and the prayer for judgment remained the same, $15,000.

Defendant answered with a general denial of the averments of the petition, and a plea of assumption of risk on the part of plaintiff.

Trial before the court and a jury resulted in a verdict for plaintiff in the sum of $15,000.

Defendant filed in due time its motion for a new trial which was overruled and the cause was duly appealed to this court.

The facts will be further referred to in the course of the opinion following.

I. In defendant’s assignments of error the first is: that the court erred in adopting the construction of the statutes and ordinances in question advanced by the plaintiff and upon which the petition was bottomed.

This is a crucial question as to the plaintiff’s right to recover in the case; in fact, we regard other questions as incidental and °f 110 consequence, unless the court committed error upon this proposition.

The precise contention made by the defendant is: “That the burned building was not a hotel or a dormitory, but was a club house, for which the number of fire escapes should be determined by the Building Commissioners of the City of St-Louis.” (Italics ours.)

The petition alleges that said “club was operated ais .a general club, boarding and lodging house, dormitory and hotel.”

This club was a place where members and their guests lodged and slept, where a large kitchen or cook room was maintained and where they ate their meals. There was also maintained a gymnasium, swimming pool and many other forms of amusement.

The proviso in Section 10668, Revised Statutes 1909, reads as follows:

“Provided, however, that all buildings of non-fireproof construction three ór more stories in height, used for manufacturing purposes, hotels, dormitories, schools, seminaries, hospitals or asylums, shall have not less than one fire escape for every fifty persons or fraction thereof for whom working, sleeping” or living accommodations are provided above the second story, and all public halls which provide seating room above the first or ground story shall have such number of fire escapes as shall not be less than one fire escape fbr every one hundred persons, calculated on the seating capacity of the hall,” etc.

The character of the building in question has been settled by this court as a dormitory. [Ranus v. Boatmen’s Bank, 279 Mo. 332, 214 S. W. 156; Newell v. Boatmen’s Bank, 279 Mo. 663, 216 S. W. 918.

These opinions were handed down by Division Number One. They related to the burning of the same building and the same facts were present as in the instant case except that in those cases the parties were burned to death, and in the instant case plaintiff was fortunate enough to escape from the burning building with her life. We rule, in harmony with said cases, that said building was a dormitory. ,

II. It is contended that the court erred in refusing defendant’s requested peremptory instruction at the close of the plaintiff’s case. As has been seen ^le demurrer should not have been sustained on account of defendant’s contention that said building was not a dormitory, and as to the facts we think they were ample to go to the jury. We overrule the contention.

III. Complaint is made that the court erred in admitting the testimony of Dr. Fry, detailing what plaintiff said she had suffered prior to his examination of her. The testimony relating to this .matter is as follows :

“Q. Well, in diagnosing her case, doctor, of course you always ask the patient certain questions and so forth about just what they are suffering from and so forth! A. Yes.

“Q. Did she tell you that she had had any passing of blood!

“Mb. Hay: Just a moment. I object to that, as it relates to the past and not then existing symptom.

“Mb. Sibley: I will modify the question. Did she tell you at that time in telling her condition that she was having passing of blood!

“Mb. Hay: Just a moment. I object to that, your Honor. It relates to history and is mere hearsay.

“The Cotjbt: I will overrule the objection. Objection and exception.

“A. Yes, she told me she had had—

“Mb. Sibley: What do you call that, doctor, in medical terms! A. Well, we speak of it as metralgia.

“Q. And that means what, doctor! A. Well, that means any irregular passage of blood that is different from the normal menstruation.

“Q. Did she complain, doctor, of suffering pain! A. Yes, she had pains associated with it.”

On cross-examination by Mr. Hay: “Q. Doctor, as I understand, what you said about her passing blood was based upon what she told you had taken place prior to the time she saw you, is that correct! A. Yes, sir.

“Mb. Hay: I renew my motion and objection to the testimony, your Honor, and move that it all be stricken from the record as being based on statements made—

“The Witness: I might say there that I wouldn’t be sure that she made all of these complaints as having been prior to the time she saw me. I don’t know bnt that she had some of them between there. I would not be real sure about that.

“Q. I mean she was referring to what had taken place before the consultation and not during the consultation? A. Yes, that is right, during or between consultations.

“Q. They all related to symptoms antedating the time of the consultation, is that correct? A. Well, certainly, relating to, circumstances of the kind before the first consultation, but, as I say, I don’t remember now whether between, the time of the two consultations.

“Q. But when you had the consultation with her the symptoms of that kind she was speaking about — A. Were what she told me.

“Q. Were what she told you about what had taken place before that, is that correct? A. Yes, sir.”

Thereupon Mr. Hay moved that it all be stricken from the record; the court overruled the motion, and objection was made and exception saved.

Defendant cites as a athority for his contention the case of Gibler v. Railroad, 129 Mo. App. 1. c. 103, which is we think one of the leading cases on the question, from which we quote as follows:

“The rule of law involved in the exception to this expert testimony is examined with discrimination and care in that well-tested repository of sound law, Green-leaf on Evidence, vol. 1, sec. 162,- of the sixteenth edition. The rule' stated in this treatise and accepted by most, if not all, courts, is that a physician may give in evidence his expert opinion of the condition of a patient, founded on his observation or on the patient’s statement of present subjective symptoms, or both, and in giving his opinion the physician may testify not only of what he observed, but what the patient told him about present symptoms.”

The assaulted portion of Dr. Fry’s testimony was erroneous and constitutes reversible error. [Gibler v. Railroad, 129 Mo. App. l. c. 103; Holloway v. Kansas City, 184 Mo. 19; 1 Greenleaf on Evidence (16 Ed.), see. 162; Insurance Co. v. Mosley, 8 Wall. 397.]

Judge Burgess, who wrote the opinion in the Holloway-Kansas City case, said: “The court holds in that case (referring to Ins. Co. v. Mosley, supra) that the physician can only give in evidence the declarations of a patient as to ‘a present existing pain or malady.’ The statements of plaintiff with respect to her past physical condition are mere .hearsay, and should not have been considered by the expert in expressing his opinion as a witness as to her physical condition at the time of the trial. The decided weight of authority and the better reason we think supports this contention. ”

On account of this error the cause will have to be reversed and remanded for a new trial. It is so ordered.

Bailey and White, CC., concur.

PER CURIAM:

The foregoing opinion of MozbeI C., is hereby adopted as the opinion of the court.

All of the judges concur.

PER CURIAM OPINION ON MOTION FOR REHEARING- AND TO TRANSFER TO BANC.

Respondent has filed herein a motion for rehearing, and also an alternative motion to transfer this cause to Court in Banc. It is earnestly insisted by respondent, that the error pointed out by the court in its original opinion, relating to the testimony of Dr. Fry, resulted in no harm to appellant, as the same facts are alleged to have been proven by other witnesses.

We find, upon examination of the record, that plaintiff testified as follows:

“Q. Have you had any passage of blood? A. Yes, I had — I pass blood from my bowels and I have had hemorrhages of the bladder too.”

She was not testifying’ as an expert, bnt as to her actual condition at some time not mentioned. Hence, her evidence was competent if it related to the injuries sustained at the time of fire. It was not the same class of evidence sought to be shown by the testimony of Dr. Pry. In other words, the above testimony of plaintiff should be classed as direct evidence, while that of Dr. Pry is considered expert evidence. It does not appear from respondent’s testimony, that the fire had anything to do with this passage of blood. There is nothing to indicate that it was not the ordinary blood which flows from menstruation. It does not appear that it was the kind of blood that Dr. Fry was basing his opinion on as an expert. No other witness except plaintiff had been asked about this passage of blood before Dr. Pry was examined, and an objection made to his testimony.

Here, then, was Dr. Pry, a leading specialist on nervous diseases, called upon to testify in behalf of plaintiff, and was confessedly permitted to give his opinion as to her future condition based in part on her incompetent narration of her past condition as detailed to him, outside the presence of either court or jury. The evidence thus offered was clearly incompetent. [Aronovitz v. Arky, 219 S. W. l. c. 623-4; Holloway v. Kansas City, 184 Mo. 19, 82 S. W. 94; Freeman v. L. P. Ins. Co., 195 S. W. l. c. 548; Gibler v. Railroad, 129 Mo. App. l. c. 100.]

If plaintiff’s counsel, with the view of augmenting the damages in this class of cases, will persist in getting before the jury improper testimony, to which timely and appropriate objections are made, they have no one to blame but themselves if the case is reversed and remanded for a new trial on account of the admission of such illegal evidence. Especially is this true, in the case before us, as plaintiff’s counsel were not content to have Dr. Pry give an opinion based on plaintiff’s testimony given at the trial, but insisted on the opinion of Dr. Pry based on the hearsay testimony aforesaid. It was the province of the jury to pass upon the facts. They might not have believed that the passage of blood described by plaintiff, if it actually occurred, had anything to do with the fire or injuries sustained herein. It is evident that counsel for respondent considered the evidence objected to as very important, or they would not have been so insistent on having’ it admitted in the face of a timely and proper objection. Our ruling, in respect to this matter, has been clearly and easily understood. If counsel saw. fit to speculate thereon they must suffer the consequences. It is not the province of this court to determine the extent of the injuries inflicted by the- admission of said evidence.'

It is fair to assume, that when counsel introduce a noted specialist, or one standing high in his profession, that the jury are expected to give his testimony full credit in passing upon plaintiff’s compensation. If it is based upon matters prohibited by law, and timely objections have been made to its introduction, it becomes the plain duty of this court to reverse and remand the cause for a new trial. As heretofore stated, an objection was made to the incompetent testimony at the earliest opportunity. Said objection was not available as to the evidence of respondent for the reason heretofore shown.

Counsel for plaintiff, in their motion to transfer, seem to be of the impression that Commissioner Mozley, who wrote the opinion in this cause, is no longer a member of the court. His resignation does not become effective until July 1, 19*21, and he now occupies the. same -position that he did when the original opinion was written.

We deem it unnecessary to extend this opinion further. The authorities heretofore cited plainly stamp the testimony complained of by appellant as -improper, and we see no reason for making an exception in this case to the well settled rule of law heretofore stated.

Respondent’s motions for a rehearing and to transfer to the Court in Banc are respectively overruled.


author: DAVID E. BLAIR, J.

text:
    FORTUNATO MARSALA, FORTUNATO BONADONNA and DORTIA MARSALA BONADONNA; FORTUNATO MARSALA, Appellant, v. MARIA CASAGA MARSALA, FRANCES MARSALA and DIEGO MARSALA.
    Division Two,
    June 23, 1921.
    1. PARTITION SALE: Motion to Set Aside: Time of Filing. A motion to set aside an order approving a sale by the commissioner in partition serves the office of a motion for a new trial, and must be filed within four days after the order approving the sale is entered, and if not filed within such time the trial court loses jurisdiction to consider it.
    2. -: -: After Final Adjournment. The trial court has no inherent power to set aside a judgment after the final adjournment of the term at which the judgment is entered.
    3. -: —-■: -: General Order of Continuance. A general ' order that “all causes, motions and demurrers now pending and undisposed of be and they are hereby continued to the* next term of this court” does not have the effect of continuing the jurisdiction of the court to set aside a judgment on its own motion, where the motion to set aside was filed out of time at the term at which the continuance order was made. The court can set aside a judgment upon its own motion only at the term at which the judgment was rendered.
    Appeal from Jackson Circuit Court. — Hon. Harris Robinson, Judge.
    Reversed and remanded, (with directions).

      Julius G. Shapiro and Arthur N. Adams for appellant.
    The. circuit court was without jurisdiction to vacate the sale, the term being past, and the motion to vacate being filed out of time. Harkness v. Jarvis, 182 Mo. 231; Padgett v. Smith, 205 Mo. 122; Sec. 1456., R. S. 1919; State ex rel. v. Ellison, 267 Mo. 321; Jende v. Sims, 258 Mo. 26; State ex rel. v. Reynolds, 209 Mo. 161; State ex rel. Brainerd v. Adams, 84 Mo. 310; Scott and Colbern v. Joffee, 125 Mo. App. 573; Beecham v. Evans, 136 Mo. App. 430; Mann v. Warner, 22 Mo. App. 581.

      Warner, Dean, Langworthy, Thomson $ Williams for respondent.
    (1) The motion to set aside the sale was filed during the same term of court as the report of and confirmation of sale. Fannon v. Plummer, 30 Mo. App. 25; Nickey v. Leader, 235 Mo. 30. (2) Motion to set aside sale was the proper procedure and the fact that the motion was not disposed of until a succeeding term does not affect the validity of the motion or the jurisdiction of the court to determine it. Aull y. St. Louis Trust Co., 149 Mo. 14; Higgins v. Higgins, 243 Mo. 171; Ewart v. Poniston, 233 Mo. 695; Iiarkness v. Jarvis, 382 Mo. 231; Hall v. McConey, 152 Mo. App. 7; Childs ,v. Railroad Co., 3.17 Mo. 414; State ex rel. v. Ellison, 267 Mo. 321; Arnold v. Arnold, 222 S. W. 1001; Bassiere’s Administrator v. Sayman, 257 Mo. 303.
   DAVID E. BLAIR, J.

This is an appeal from an order of the Circuit Court of Jackson County setting aside an order approving a partition sale of certain real estate made by- a commissioner of that court.

The property involved is described as all of the east fifty feet of lots one and two and the east fifty feet of the north forty feet of lot three in block seventy in East Kansas, an addition to Kansas City. The interests of the parties were determined by the court and the property ordered sold by a commissioner. It is conceded that up to this point the proceedings were regular in all respects. The property was sold for $5,500, and the report of sale was approved by the court on June 12, 1919, at the May Term, 1919, of said court, and distribution of proceeds ordered in accordance with their respective interests as theretofore determined. On August 16, 1919, or sixty-five calendar days thereafter, Fortunato Bonadonna and Dortia Marsala Bonadonna, plaintiffs below, and defendants Maria Casaga Marsala and Frances Marsala filed tbeir joint motion to set aside the order of the court approving said sale. August 16, 1919, was during a temporary adjournment of the May Term, 1919, of said court. Said motion to set aside the sale was not acted on at said May term. As ap pears from the additional abstract of the record filed by respondents, on September 6, 1919, being the forty-third day of the regular May term, 1919, of said court, an adjournment order to court in course was entered, which provided that “all causes, motions, demurrers and other matters now pending and undisposed of be and they are hereby continued to the next term of this court.” On December 2, 1919, the same being the 18th day of the November term, 1919, of said court, said motion to set aside the order approving the report of sale was sustained and such sale was set aside solely on the second ground stated in the motion, to-wit, inadequacy of sale price, the first, third and fourth grounds being found insufficient to set same aside.

Plaintiff Fortunato Marsala (appellant here) filed his motion for a new trial on the motion to set aside the sale and also in arrest of judgment, and, same being overruled, has appealed.

Numerous errors are assigned by appellant, but the view we take of the matter makes it unnecessary to consider more than one. The first assignment is that the court erred in setting aside the order approving the sale, because the motion to set same aside was filed out of time and the court lost jurisdiction of the cause after the adjournment of the May term. We think appellant is clearly right in this contention.

Section 2001, Revised Statutes 1919, provides that all pleadings and proceedings under the partition act shall be had as in ordinary civil cases. Where no independent provision is made in the partition act the general practice act governs. [Cochran v. Thomas, 131 Mo. 258, l. c. 271.] There is no special provision in the partition act governing the filing of motions for a new trial.

The order approving the sale and providing for distribution is the final judgment in a partition case. [Clark v. Sires, 193 Mo. 502, l. c. 516; Murray v. Yates, 73 Mo. 13; Harbison v. Sanford, 90 Mo. 477.] A motion to set aside the order approving such sale therefore serves the office of a motion for a new trial, and, treated as such, must be filed within four days after the trial, in this case within four days after the entry of final judgment. [Sec. 1456, R. S. 1919.] The motion to set aside said sale filed during the May term, but more than four days after the final judgment was entered, was too late to be treated as a motion for a new trial. [Bank v. Porter, 148 Mo. 176; Mirrielees v. Ry. Co., 163 Mo. 470.]

The trial court has the inherent power to set aside any judgment during the same term at which it is entered, either on its own motion or acting on the suggestion of a party to the action. The court has no such power after the final adjournment of the term at which such judgment was entered. [Scott & Colbern v. Joffee, 125 Mo. App. 573; Bank v. Porter, supra; Mirrielees v. Railway Co., supra; Harkness v. Jarvis, 182 Mo. 231.]

The general order of the court continuing all motions to the next term of court did not have the effect of continuing the jurisdiction of the court over the case to set aside said judgment on its own motion, treating the motion filed out of time at the previous term as a mere suggestion to the court. Motions of such character must be acted upon at the term at which they are filed. [Childs v. Railway Co., 117 Mo. 414, l. c. 423.]

For the reásons stated the judgment of the circuit court is reversed and the cause remanded with directions to the circuit court to vacate its order setting aside said sale and to reinstate its order approving such sale.

All concur.


text:
    CITIZENS TRUST COMPANY, Receiver, Appellant, v. L. C. GOING.
    Division Two,
    June 23, 1921.
    1. ACTION AT LAW: Equitable Defense: Trial to Jury. The interposition of an equitable defense to an action at law, in the' absence of a prayer for affirmative relief based thereon, does not convert the action into one in equity, and does not preclude a submission of the case to a jury.
    2. -: Peremptory Instruction: Ignoring Defenses. A peremptory instruction to the jury to find for plaintiff cannot be given if the giving of it ignores a valid defense pleaded and supported by substantial evidence.
    3. ESTOPPEL: Submission to Jury. There is no rule of law or equity which precludes a defendant sued on a note signed by him from interposing the defense of estoppel, or from having it submitted to the jury where the evidence tends to sustain it.
    4. -: -: Defense to Action on Note: Agreement With Trustee Appointed by Court. When sued on a note given to a bank, an agreement between the maker and the bank by which the maker agreed to and did surrender a note for a like amount given him by a lumber company in consideration of a release by the bank of the note sued on, is a valid defense, and if pleaded and supported by substantial evidence should be submitted to the jury. And if the agreement, instead of being made with the bank, was made with the trustees of the insolvent bank appointed by the court, who, as agents of the bank in collecting its assets, acquired the stock of the lumber company, then said agreement was likewise a valid defense; for, although as trustees appointed by the court they were not authorized to settle a claim of the bank for less than its face value without permission of the court, they acquired the stock of the lumber company charged with its indebtedness, and in agreeing to release defendant on his note to the bank upon the surrender of the lumber company’s note for a like amount given to him they sacrificed no legitimate claim due the bank.

      5. -: Power of Court Officer: Settlement. Those who deal with officers appointed by the court to administer the affairs of an insolvent corporation are required to take notice of the limitations which the law places upon the powers of such officers; but this does not preclude such officers from pursuing such a course as should characterize every business transaction, whether performed individually or in a representative capacity.
    6. -: Consideration for Note. The cashier of a bank was also president of a lumber company, and at his request the defendant executed his note to the bank, to be discounted and the money used to buy certain land for the lumber company, and in turn the lumber company issued to defendant its note for a like amount to secure him against loss. The proceeds of the note were placed by the bank to the credit of the lumber company, were used in purchasing the land, and defendant received no part thereof and his note was regarded by the bank and its directors as the note of the lumber company, which later became bankrupt, but at the time its note become due was solvent, and but for the conduct and promises of the bank the defendant would have enforced the payment of the note given to him. Held, that these facts constituted estoppel to a suit on the note given by defendant to the bank, even against its receiver, and it was for the jury to determine their truth, the evidence being substantial.
    Appeal from Dunklin Circuit Court. — Hon. W. S. C. Walker, Judge.
    Affirmed.

      Orville Zimmerman and G. G. Shepard for appellant.

      Ward &■ Reeves for respondent.
    (1) If Going gave bis note directly totlie bank for the purpose of procuring funds with, which to buy for the lumber company the north half of Section 8, did the bank have the right to take the proceeds of this note and credit same to the account of the Pemiscot Lumber Company Avithout the consent of Going? This question must be answered in the negative. If Going received no part of the proceeds of the note and if lie never authorized the bank to deposit the proceeds to the credit of the Pemiscot Lumber Company, then there has been a total failure of consideration. (2) If Tindle by reason of his agreement with Going, was liable to the bank, did the agreement between Cunningham, as trustee, and Tindle on July 12, 1913, taken into connection with the trust deeds of May 15th and May 30th, constitute a merger and a resultant satisfaction of the direct and indirect indebtedness of Tindle to the bank including the note sued on? This issue was submitted by the court to the jury upon instruction 4. The instruction accurately declared the law upon this issue. Ordinarily a conveyance by the mortgagor to the mortgagee of the fee in mortgaged lands results in a merger of the legal and equitable titles and the resultant satisfaction of the entire debt secured by the mortgage. 27 Cyc. 1378B; Wallen v. Huff, 5 Humph. 91; Jackson v. Evans, 44 Mich. 510; Howe v. Woodruff, 12 Ind. 214; Pearson v. Bailey, 180 Mass. 229; National Investment Co. v. Nordm, 50 Minn. 336. ('3) Did the agreement between Going upon the one hand, and Reynolds and Cunningham, as agents and trustees of the bank, upon the other, that Going would surrender his claim of $6000 against the lumber company in consideration of the release of the note sued on, constitute a settlement and satisfaction of same? It is seriously contended by appellant that receivers appointed by the court are simply agents of the court and derive their power and-authority to act under and in pursuance of its orders and that a receiver cannot lawfully compromise or settle a claim due the estate in litigation for less than the face value of the same without permission of the court. This is true, but if Going’s contention is correct, and he had the right to have his contention submitted to the jury, then the receivers did not sacrifice any legitimate claim of the bank. If the agents of the bank, in collecting its assets acquired the capital stock of the lumber company, then that capital stock was a part of the bank assets, charged, however, with the indebtedness of the lumber company, and if the lumber company was solvent and owed Going $6000 and Going owed the bank $6000 and the bank owned the lumber company, the situation presented was just exactly like Going says Reynolds and Cunningham declared it to be, that is, “It’s as broad as it’s long; if you pay us, we will have to pay you the same sum,” so there was in effect no cancellation, no compromise and no settlement of an indebtedness to the bank for less than the face value of same.
   WALKER, J.

The receiver of the Pemiscot County Bank brought this suit in the circuit court of that county to enforce the payment of a promissory note for $6000 made by the defendant, Going, to said bank. The answer admits the execution of the note, but pleads in defense estoppel, settlement and payment. There was a verdict for the defendant, and from the judgment rendered thereon the plaintiff appealed to the Springfield Court of Appeals, which affirmed the judgment of the circuit court. One of the judges of the Court of Appeals dissented on the ground that the majority opinion conflicted with certain rulings of the Supreme Court and certified the case here for review.

The following facts are pleaded in the answer:

The making of the note is admitted; and that when it was executed and prior thereto, one A. C. Tindle was the cashier of the Pemiscot County Bank, and was also the president of the Pemiscot Lumber Company, an Arkansas corporation. Defendant was the attorney for the Lumber Company. At Tindle’s request defendant executed the note for six thousand dollars to the-bank, the proceeds of same to be used in the purchase of a tract of land in Arkansas, and in turn Tindle agreed to and did execute a note for a like amount by the Lumber Company to the defendant to secure him against loss on account of the note given by him to the bank. At Tindle’s request, the bank discounted defendant’s note to provide funds to purchase for the Lumber Company a half section of land in Arkansas, which was the purpose for which the note had been given. The proceeds arising from this transaction were placed by the bank to the credit of the Lumber Company, and defendant received no part of same. With these proceeds the Lumber Company paid for the land, and defendant’s note was regarded by the bank as the note of the Lumber Company. Defendant was not notified by the bank that the note had not been paid and no demand was made upon him for its payment; that but for'the. conduct of the bank the defendant could and would have proceeded to enforce the payment of the note given to him by the Lumber Company which was then solvent, but which subsequently became bankrupt. That by reason of the foregoing facts, the bank as well as the plaintiff, its receiver, is estopped from prosecuting this cause. That in June, 1913, the Pemiscot County Bank was found to be insolvent and was taken in charge by the State Banking Department and later was placed in the hands of two of the bank’s directors as trustees; that it was then discovered that Tindle, its former cashier, owed the bank large amounts of money, and in an effort to pay the same he transferred to one of the said trustees much personal and real property, among which was the stock of the Pemiscot Lumber Company; that preparatory to the conveyance of this property to the trustees for the bank, the defendant was employed by said trustees to represent the bank in said conveyance; that it was discovered that about fifteen hundred acres of land in Arkansas had been purchased by the Lumber Company, but that the deeds thereto had been taken in the name of Tindle and one Elder, and that Tindle had conveyed all of said lands to Elder and that the title to same was in him; that these lands included the half section which had been paid for with the proceeds of the note given by the defendant to the bank; t-hat the trustees thereupon employed defendant to divest Elder of his title to said land and vest the same in trustees for tlie bank, and that said service was successfully performed by the defendant. That before this was effected, defendant informed both of the trustees for the bank that the proceeds of his, defendant’s, note, which is now being sued on, had been used to pay for the half se'ction of the land for the Lumber Company,, and notified them of his intention to have an equitable lien declared against said land to protect him from the payment of said note; that said land was worth, at the time, more than the amount due on said note; that the said trustees, as agents for and representatives of the bank, then and there agreed with the defendant that in lieu of the satisfaction of his note they would take, accept and receive for the bank the title to said half section of land, and in pursuance of this agreement defendant abandoned his right to enforce his lien against said land and caused the title to same to be vested in the trustees for the bank, and abandoned his right to proceed against the Lumber Company on the note given by it to him to protect him against the payment of the note sued on; that the bank after securing the title to the half section of land aforesaid by silence and acquiesence, lulled the defendant into a sense of security until after the title, to the half section had been adjusted, the Lumber Company had gone into bankruptcy and the half section of land was listed as a part of the company’s assets, when the bank sought to hold said land as a preferred creditor for the satisfaction of the note it is now seeking to compel the defendant to pay. That by reason of said facts plaintiff is barred and precluded in good conscience and in equity from maintaining this action.

The reply denies the new matter and asserts that the representatives of the bank did not make the agreement to release the defendant’s note and if such agreement was made it was void for lack of authority, because the bank had failed and its affairs were in the hands of the State Bank Commissioner.

It was admitted that the plaintiff Trust Company was the receiver of the bank and that it sued as such.

Plaintiff introduced the note and rested. Defendant testified along the lines of and in support of his answer. In addition he introduced in evidence contracts, deeds, etc., from Tindle to one of the trustees of the bank to show that the note sued on had been paid by Tindle; Tindle’s deposition was read on behalf of the defendant and supported the latter’s testimony. Among’ other things Tindle stated that he explained the transaction in regard to the making of the two notes, to both of the trustees, as representatives of the bank, one of whom was then a director and the other the president of the bank, and told them the purpose for which the note sued on had been given by the defendant, the same being to enable him, Tindle,-to secure six thousand dollars in cash for the Pemiscot Lumber Company to apply on the payment of the half section of land. Tindle’s deposition corroborated the testimony of the defendant in other particulars, which if necessary to be stated in detail will be found in the opinion. The trustees denied that they had made any agreement with the defendant releasing the note sued on, but admitted that defendant assisted them in removing the cloud from the title to the half section of land to which Elder held the deed. They also denied that defendant’s note was satisfied by the settlement made by them with Tindle for the bank.

I. It is contended that the circuit court erred in submitting this case ífco a jury. The action was at law. The defenses thereto may, to a certain extent, be equitable in form, but the interposition of an equitable defense in the absence of a prayer for affirmative relief based equity. This ruling has been attested in numerous thereon, does not convert the action into one in cases. [Hayes v. McLaughlin, 217 S. W. l. c. 264; Koehler v. Rowland, 275 Mo. l. c. 581 and cases; Toler v. Edwards, 249 Mo. l. c. 168; Lee v. Conran, 213 Mo. 404; Minor v. Burton, 228 Mo. l. c. 563.]

In the Lee-Conran case, the distinction between two classes of cases as regards the right of trial by jury is thus defined:

“If the issue joined entitle the parties to an ordinary judgment at law, then, under the Constitution and laws of the State, the parties are entitled to a trial by jury; but if the issues tendered are equitable in their nature and call for equitable relief, then the cause is triable before the chancellor.”

In that case, the action was one at law. The answer among other defenses, as at bar, pleaded estoppel. This was held, in the absence of a prayer for affirmative relief, not to convert the action into one in equity.

In the Toler-Edwards case, at page 158, we said further in this regard:

“It has long been settled in this State that a purely legal action, such as ejectment, is not converted into one in equity simply by the interposition of equitable defenses thereto, unless there is a prayer for affirmative relief based on those defenses. ’ ’

An epitome of the defenses pleaded in the answer will demonstrate whether any equitable right was thereby sought to be established or if a demand was made for the application of an equitable remedy. The answer alleged that the proceeds of the note had been diverted from its purpose or transferred to another without authority and that the defendant had derived no benefit therefrom; that the note was given for a specific purpose with the knowledge and approval of the bank officials, and that the Pemiscot Lumber Company was, in fact, the maker and the real beneficiary; that the note had been paid by Tindle, and if not paid, that it had been settled in the surrender by defendant to the bank of the note for a like amount which had been given to him by the Lumber Company. These were questions of fact for the determination of .the jury in an action at law and we, therefore, overrule the plaintiff’s contention.

II. Error is assigned in the refusal of the trial court to give a- peremptory instruction to the jury to find for the plaintiff. To have authorized an instruction of this character, it would have been necessary to have ignored substantial testimony that the note was given by defendant for a specific purpose to the bank and that the proceeds arising therefrom were not so used; and it would also have been necessary to have ignored the further proof that the note had been paid in Tindle’s settlement with the bank. It will suffice to say, in view of these facts, that the seriousness of plaintiff’s contention may well be questioned and we, therefore, hold that the court below ruled rightly in this, regard.

III. Complaint is made of the giving at the instance of the defendant of instruction numbered V/>, which is as follows:

"If you find from a preponderance of the evidence in this case the note sued on was executed by defendant to procure money with which to purchase the north half of Section 8, Township 4, north, of Range 7 east, in Crittenden County, Arkansas, for the Pemiscot Lumber Company, and that thereafter defendant drew a draft on said bank in favor of the owner £or $4,901.67, the balance . of the purchase money due him, and that defendant honestly and in good faith believed that the proceeds of his note was used by said bank to pay said draft and reimburse A. C. Tindle for one thousand dollars previously sent by him to defendant to pay on said purchase price, and if you further find from the evidence that said bank failed and its property was turned over to the State Banking Commissioner, and by him to S. P. Reynolds, as State Special Agent, and that in assembling the assets of said bank, said J. A. Cunningham, the president secured all the capital stock of said Pemiscot Lumber Company, as trustee for said bank, and that said Cunningham, as trustee, and Reynolds, as State Agent, discovered that the title to a large body of land belonging to said Lumber Company had been conveyed to W. E. Elder, the secretary of said company, and that said Reynolds, as special agent, and Cunningham, as president of said bank, sought the services of defendant to divest the title to said land out of said Elder and vest it in said Lumber Company, and that thereupon said defendant informed said Reynolds and Cunningham that if they, as the representatives of said bank, insisted that he was liable to said bank upon the notes sued on, he, the defendant, would undertake to subject said north half of Section 8, Township 4, north, Range 7 east, to the paymc-nt of same; and if you further find from the evidence that it was agreed between the parties that if defendant did release his claim to said land and recover said land for said Lumber Company, said bank would release defendant from liability on said note, or if you believe from the evidence that said Reynolds ao^d Cunningham as the agents of said banJc by their acts, words or conduct led defendant to believe that if he did release his claims to said land and recover the same for said Lumber Company, Pemiscot County Banlt would release defendant on said note, aaid said defendant relying thereon released his claim against said las%d and Lumber Company and recovered said land for said Lumber Company, then your verdict should be for the defendant

It is to the italicized portion of this instruction to which particular objection is made.

An instruction was given at the request of the plaintiff submitting the issue of the agreement embodied in the foregoing instruction of defendant; plaintiff’s instruction, however, does not embrace the defense of estoppel, which is- submitted in the italicized portion of defendant’s instruction; there is no rule of law or equity which precludes the right of the defendant to thus interpose this defense in t]ie manner in which it is made under the facts at bar, and so far as this objection to the instruction goes, it must be held to be without merit.

Defendant’s instruction above set forth, as well as instruction numbered 2 given at his instance, are similar in purport. They deal with the question of the contract or agreement made between the defendant on the • one hand and the trustees as agents of the bank 011 ^le °^ler) i-11 which defendant contends that lie agreed to and did surrender his claim of six thousand dollars against the Lumber Company in consideration of a release by the bank of the note sued on. It is the contention of the plaintiff that although the making of this agreement be conceded, that the parties with whom it was made, namely, the trustees were appointed by the court, and were simply its agents with no power to act except in pursuance of its order, and hence, that they were not authorized to compromise or settle a claim due the bank for less than its face value without the permission of the court. The correctness of this rule under a state of facts supporting same cannot be gainsaid; but if the defendant’s testimony is to be believed and his .right to have it submitted to the jury cannot be questioned, then the trustees did not in this settlement sacrifice any legitimate claim due the bank. If as agents of the bank in collecting its assets the trustees acquired the capital stock of the Pemiscot Lumber Company, then that stock became a part of the bank’s assets, charged, however, with the indebtedness of the Lumber Company, and if the latter was solvent and owed the defendant six thousand dollars and the defendant owed the bank a like amount and the bank owed the Lumber Company, the. situation presented was, as the defendant states the trustees declared it to be, viz.: ‘ ‘ as broad as it was long;” in that if defendant paid the trustees, they in turn would have to pay him a like sum. This being true there was, so far as this record discloses, neither a cancellation, compromise nor settlement of an indebtedness to the bank for less than the face value of same and, hence, the rule invoked as to the limitation of the power of the representatives of the bank can have no application here.

While courts require those who deal with their officers to take notice of the limitation which the law places upon their powers, this does not preclude such officers from pursuing such a course as should characterize every business transaction, whether performed individually or in a representative capacity. If the facts are, as the defendant declares them to be, judicial sanction should not be given to the course pursued by the representatives of the bank in this matter.

We do not desire to, nor will we draw any invidious distinctions between the testimony of the respective parties hereto, further than our rules of procedure require, in that we will recognize the superior probative force of any substantial testimony, the verity of which has been approved by the jury. The jury, well within their province, have determined to give credence to the testimony of the defendant rather than that of the representatives of the bank. A summary of the defendant’s testimony, corroborated by that of the witness Tindle is, that by reason of the representations of the trustees, defendant was caused to lose his right to secure from the assets of the Lumber Company the amount it owed him equal to that of the face of his note given to the bank; that the course pursued by the trustees prevented defendant from enforcing an equitable lien upon the half section of land owned by the Lumber Company. While this course of conduct was, no doubt, pursued in an effort to enlarge the bank’s assets and with no desire to limit the rights of the defendant, it nevertheless had this effect and in the face of the record this course does not meet with our approval. .

The giving of instruction numbered 4 at the instance of the defendant is assigned as error. It is as follows:

This instruction is based on the testimony of Tindle who stated that the rents and profits of his mortgaged property was of the value of ten thousand dollars per year, and at the time of his release of the equity of redemption he was entitled to collect rents and profits for ten months, amounting to about eight thousand dollars, which he surrendered when he entered into the release, settlement and satisfaction of all of his indebtedness to the bank, directly or indirectly, as shown in a written instrument signed by Tindle and Cunningham, one of the trustees, on July 12th, 1913. The witnesses for the plaintiff denied the truth of this statement, but the jury gave credence to the testimony of Tindle. ' It was upon this testimony that the above instruction was given. It simply told the jury that if Tindle released his. equity in consideration of the settlement and satisfaction of his indebtedness to the bank, directly or indirectly, and that the indebtedness sued on was included in that settlement and the bank accepted and received the property and retained it, then the debt sued on had been paid.

Ordinarily, a conveyance by a mortgagor to a mortgagee of the fee in mortgaged lands results in a merger of the legal and equitable titles, and in the resultant satisfaction of the entire debt secured by the mortgage. [27 Cyc. 1378-9 and cases cited.] This result, it may be conceded, is dependent in many cases upon the evidence as to intention of the parties at the time the equity is conveyed. The jury in believing Tindle evidently found that when he executed the deed to the representatives of the bank, he had an equity or interest in the property to the extent of eight thousand dollars; and that he surrendered this interest in consideration of a complete settlement and satisfaction of his direct and indirect indebtedness to the bank, including, as he stated, the note sued on. There was, to say the least, substantial evidence upon which to base such a finding and hence the instruction, was not error. The defendant’s right to a verdict, however, in view of his other defenses, pleaded and proved, need not be made to depend on this instruction; and its discussion is pertinent if for nothing inore than to show that its giving did not constitute error authorizing a reversal.

IV. It is contended that the testimony was not sufficient to authorize the submission of the defense of estoppel to' the jury. Tindle, the former cashier of the bank, testified that at the time the defendant’s note to the bank was discounted, he explained to the president and one of the directors, who are the trustees representing the receiver in this suit, the purpose for which the note was given and the reason he desired it discounted; that the defendant was not then, nor had he ever been, a patron of the bank; that he (Tindle) told these officials that the money was to be used in the purchase of the half section of Arkansas land for the Pemiscot Lumber Company, and that the note was discounted by them for the bank with full knowledge at the time of all of these facts;-that they knew that the defendant was not the beneficiary in the transaction, and that the Lumber Company was to pay the note when it became due. These facts are denied by the trustees, but the jury believed, as they had a right to do, Tindle’s testimony. Aside from our duty to accept the finding by the jury of the facts when supported by any substantial evidence, we are not inclined when we take into consideration the entire atmosphere of this case to question the correctness of the jury’s finding in this regard. If, therefore, Tindle’s testimony be true, then the bank could not at law have enforced the payment of this note by the defendant, and the plaintiff by reason of its appointment and authority as receiver could not acquire any greater rights’or power to assemble or collect the assets of the bank than that possessed by its directors. This is elementary and the citation of authorities is unnecessary to sustain this conclusion.

V. Error is assigned in the refusal of certain instructions asked by the plaintiff. Instruction numbered 5 was properly refused because it omitted, hypothesizing the facts, any reference to the specific purpose for which the defendant gave the note sued on.

Instruction numbered 7 told the jury that if the draft issued by the defendant in favor of the party who held the title to the half section of Arkansas land in payment of the purchase price of same was paid out of funds of the bank and not derived from the proceeds of ^:ie defendant’s note, then the defendant had no such interest in the land as would give him a lien thereon. Thus framed, the instruction was incorrect, in that it eliminated from the consideration of the jury the question as to whether or not the proceeds of the defendant’s note had been diverted from the purpose for which it had been made. There was certainly' no authority for the giving of this instruction in the face of the fact that the defendant had not directed any other disposition of the proceeds of the note, except in payment of the purchase price of the land.

Instruction numbered 7% told the jury that if the directors of the bank had no knowledge that defendant’s note was held by the bank, then they were not required to notify him that it had not been paid and that plaintiff is not estopped by reason of this failure of notice. This instruction stated no contested issue and was based upon no contention made during the trial; the only possible relevancy of any statement in regard to a lack of notice which appears in the record was a circumstance incidentally to show that the note was not regarded as an obligation of the defendant due the bank. The fact that it was thus shown, constituted no issue authorizing the requested instruction.

Instructions numbered 8 and 9, refused, did not involve any issues presented by the testimony and hence need not be considered. •

Instruction numbered 10, requested by the plaintiff, was as follows: “The Court instructs the jury that if you. believe'and find from the evidence that the Pemiscot County Bank had been placed in the hands of the Bank Commissioner of the State of Missouri prior to the time defendant alleges the contract was entered into between defendant and J. A. Cunningham and S. P. Reynolds, by the terms of which defendant was relieved from paying’; said note, then you instructed the said J. A. Cunningham and S. P. Reynolds had no authority to make such contract on behalf of the Pemiscot County Bank, and had no authority to relieve defendant or any one else of their obligations to said bank, and you cannot find for the defendant by reason'of such contract, even should you believe such contract was made and entered into between the parties. ’ ’ This instruction ignores material facts upon which the defendant based his defense and hence was properly refused. The conclusion of the law arising from that statement of facts is incorrect as applied to the instant case. There was no evidence that the -representatives of the bank relieved the defendant or any one else of their obligations due the bank; in their settlement with defendant they received full consideration or payment of his note in causing him to release to the bank the obligation of the Pemiscot Lumber Company.

In view of all of which we are of the opinion that the plaintiff has suffered no substantial injury in the refusal of the instructions above referred to.

A careful review of the entire record discloses no ruling’s in regard to the admission or exclusion of testimony which materially affected the rights of the plaintiff.

VI. In this case, as in Young v. Glascock, 79 Mo. 574, leave was given the defendant to amend so as to admit proof of payment. The amendment was not made at the time in either case. In the Young-Glasc°ck case the court subsequently refused to permit the amendment on the ground that it was unnecessary, and there, as here, proof was offered as if the amendment had been made. In the instant case the amendment was not later made, but the court in its instructions proceeded as though it had been. The amendment proposed was material and the proof offered was relevant. In the Young-Glascock case we held in furtherance of justice that we would treat the case as though the amendment had actually been made, instead of refused by the trial court. We see no reason why the same rule should not apply in the case at bar, although the amendment was probably inadvertently omitted. This being true there is no conflict between this case and that of Young v. Glascock and cases to like effect. [Underwood v. Bishop, 67 Mo. 374; Shantz v. Shriner, 167 Mo. App. 635; Locke v. Bowman, 168 Mo. App. 121.]

. While it is true, as a general rule, that in an ordinary money demand, the fact of payment is in the nature of new matter and by our code inadmissible under a simple denial (Wilkerson v. Farnham, 82 Mo. 672 and later cases), this rule cannot be held applicable under the facts here, in view of its modification as approved in the Young-Glascock case. There is, therefore, no conflict between the case at bar and that of Wilkerson v. Farnham. We have elsewhere disposed of this question of conflict in holding that there was no error in the aiving of the instruction by the court in regard to payment, and that the defendant was eutitled to recover on other grounds.

A careful review of all the facts demonstrates to our satisfaction-that the judgment was for the right party.” Finding no error authorizing a reversal it is, therefore, affirmed.

All concur.