author: LAMM, J.

text:
    MISSOURI SMOKE PREVENTER COMPANY v. CITY OF ST. LOUIS, Appellant.
    Division One,
    June 29, 1907.
    1. PRACTICE: Instructions In Law Case. In a law case tried to the court sitting as a jury the force of instructions is spent on showing the theory of the trial court; and when that is shown by the court’s findings and conclusions, .refusal of certain instructions asked by appellant is of no moment.
    2 SALES: Character of Sale: On Trial: Smoke Consumer: To Meet Certain Tests. A sale of devices for consuming smoke and to prevent the emission of black or dense smoke from defendant’s waterworks’ furnaces, made in pursuance to calls for bids containing elaborate specifications, upon terms that the successful bidder should have sixty days to install the devices and defendant sixty days to test their efficiency, and if not found satisfactory to the water commissioners they were to be rejected, but if satisfactory they were to be paid for by defendant, does hot constitute a case where title to chattels admittedly passed from plaintiff to defendant and where defendant, when sued for the purchase price, claims damages for broken warranties, express or implied, running with the chattel; nor is it a case of sale by sample, where the thing delivered did not come up to the sample; nor one where the thing sold had no value; and hence the law of such cases is not applicable. As the sale did not at the outset pass title out of plaintiff, and did pass it, if at all, only sub modo, it was such a sale as is spoken of in the books as “a sale on trial,” or “sale or return,” or “sale if satisfactory.”
    3. -: On Trial: Smoke Consumer: Time to Test: Time of Essence: Failure to Test. Although the contract did not expressly make time of its essence, yet if the devices for consuming smoke were .sold to the city on trial, and the contracts expressly provided that the city was to have sixty days in which to test and determine their efficiency and if found satisfactory • they would then be paid for, and if not no payment was to be made, time became of the essence of the contract by fair implication and the manifest intention of the parties. And if the city did not within the specified time make the tests, and no reasonable excuse for the delay appears, it must pay for them, even though it afterwards made the tests and they were unsatisfactory.
    4. -: -: Notice of Disapproval. The seller of an article “on trial,” is entitled to reasonable notice of disapproval, and what is reasonable notice is ordinarily a question of mixed law and fact; and in this case, it is held the trial court sitting as a jury did not err in holding that, under the facts, a notice given eight days after the time limit of sixty days in which to make tests had expired, was not reasonable notice.
    5. -: - — : Satisfaction Implied. Where the city under the contract of sale was to be the sole judge of the fitness and quality of the smoke consumer devices sold, and reserved the right to pay on being satisfied after making tests, the city's satisfaction and acceptance will arise by implication from its failure to make the tests within the time specified and to give notice of its rejection within reasonable time.
    6-, -:-:-: Counterclaim: Guaranty Deposit. Where the title to the devices passed to the buyer because of failure to notify the seller of his dissatisfaction and to remove them within á reasonable time, and the buyer is for those reasons bound to pay, then the buyer’s counterclaim, based on the theory that the seller was obliged to remove them and that the buyer was damaged to the amount of the seller’s deposit to guarantee satisfaction and to remove the devices if unsatisfactory, must of necessity fail, and the deposit must also be returned.
    Appeal from St. Louis City Circuit Court. — No». ■ Daniel G. Taylor, Judge.
    Aittejmed.
    . Charles W. Bates and Benjamin E. Charles for appellant.
    (1) This was an executory contract on express conditions. The trial court found these conditions were unfulfilled, and therefore no liability could arise. Plaintiff’s express' guaranty that its device possessed certain qualities and would produce certain effects was more than a mere warranty. It was a condition precedent to any obligation on the part • of defendant. Pope v. Allis, 115 TJ. S. 363, cited in Glaus v. Magee, 42 Mo. App. 313; Norrington v. "Wright, 115 U. S. 188; Peace River Phosphate Co. v. Grafflin, 58 Fed. 550; Rubin v. Sturtevant, 80 Fed. 982; Holmes on The Common Law, pp. 335', 336; Anson on Contracts, pp. 300, 301. Defendant’s declaration of law numbered 3 ought, therefore, to have been given. Plaintiff’s action is based on an executory contract of sale which was to be consummated on the fulfillment by plaintiff of certain specified “conditions” and “guarantees.” Plaintiff failed to prove that these conditions had been fulfilled. No liability therefore attached. The trial court, on the other hand, rendered judgment as for breach of an executed contract of sale. (2) The judgment below reads out of the contract the italicized words of the following clause: “Full payment will be paade after sixty days ’ test, if all the conditions herein have been complied with, arid provided the apparatus and the operation of same is satisfactory to the water commissioner in every respect.” (3) The contract made defendant’s water commissioner an arbiter to determine whether plaintiff had complied with the contract. And plaintiff could, in no event, recover, without proof of his approval. Williams v. Railroad, 112 Mo. 489. (a) Plaintiff failed to establish that the water commissioner was satisfied .with the operation of its device. Williams v. Railroad, 112 Mo. 463; Chapman v. Railroad, 114 Mo. 5491; Dinsmore v.'Livingston County, 60 Mo. 244; McCormick v. St. Louis, 166 Mo. 315. (b) Defendant established the contrary, viz.: that the water commissioner was never, at any time, satisfied. This was indicated very clearly to plaintiff after the preliminary tests of February 11, and also by a formal letter only eight days after the expiration of the period arbitrarily fixed by plaintiff, (c) Not only so. Defendant further showed that the water commissioner’s conclusion was a just orie on all the facts. (4) The device would have been rejected by the water commissioner on the preliminary test of February 11, except for plaintiff’s request for further tests. Plaintiff cannot, therefore, be heard to complain. Skeen v. Springfield, etc., Co., 34 Mo. App. 499; Lucy v. Moufflet, 5 Hurls. & Norman 299. (5) 1. A vendee is not bound to accept that which he did not intend to buy. , Rubin v. Sturtevant, 80 Fed. 932. 2. But an acceptance may be evidenced in either one of two ways: First, by expressed words, or, second, by the conduct of the party, as by actual use for an unreasonable time beyond a stipulated period, or beyond a period sufficient to ascertain whether the warranty has been complied with. In the case at bar: (a) There was no express acceptance, (b) Acceptance could not be implied from conduct, because the city never actually used the device. It was more of a nuisance than otherwise, (c) But assuming that the sixty day period began when the device was thus imperfectly installed, defendant still had a reasonable time after the expiration of said sixty days within which to accept or reject. Eight days, as compared with sixty, is not unreasonable. Branson v.’Turner, 77 Mo. 494, where two weeks were held not unreasonable. Tower v. Pauley, 51 Mo. App. 75, where a year was held unreasonable; Manley v. Crescent, etc., Co., 103 Mo. App. 140, where five months were held unreasonable.

      Holmes, Blair & Koerner for respondent.
    (1) The sale was a sale “on trial” with a definite time limited for trial. By the failure of the city, within the time limited, to reject the smoke preventers, the sale became an absolute one. Benjamin on Sales, sec. 595; Story on Sales, sec. 250; Quinn v. Stout, 31 Mo. 160. (2) By the acceptance of the smoke preventers by the city, through its failure to make a timely rejection of them, the conditions in the contract were discharged, being conclusively presumed to be satisfied. Reed v. Randall, 29 N. Y. 358; Gaylord Co-, v. Allen, 53 N. Y. 515; Gumey v. Railroad, 58 N. Y. 358; Norton v. Dreyfus, 106 N. Y. 90; Coplay Iron Co. y. Pope, 108 N. Y. 232; Brown v. Foster, 108 N. Y. 387; Studer v. Bienstein, 115 N. Y. 325; Zabriskie v. Railroad, 131 N. Y. 72; Haase v. Nonnemacher, 21 Minn. 486; Maxwell v. Lee, 34 Minn. 511; Thompson v. Libbey, 35 Minn. 443; Comstock v. Sanger, 51 Mich. 497.
   LAMM, J.

Plaintiff sues for the contract price of eight smoke consumers, two thousand dollars, and to recover its deposit of three hundred dollars made on its successful bid to supply the same, with interest on both items. Said deposit was required by defendant for a purpose hereinafter shown. The case was assigned for trial to Judge Sale, presiding in one of the divisions of the circuit court of St. Louis. Presently, a jury being waived, it was tried to the court. From a judgment in favor of plaintiff for the full amount defendant appeals.

Plaintiff corporation had long manufactured and sold on the market a device known to the trade as a smoke consumer — the purpose whereof is writ large in its name. We -take it, the city of St. Louis is pestered with coal smoke. We take- it, some of this smoke it makes itself in operating its water plant. Having the end in view of providing wholesome air and cleanliness, an ordinance was passed in April, 1902, authorizing the expenditure of thirty thousand dollars in alterations and attachments to the boiler plant at the Chain of Rocks, etc. Thereat, in November, 1902, the water commissioner made a requisition on the commissioner of supplies for “steam jets with suitable valves to control the steam supply for same and auxiliary apparatus, equal, for the purpose intended, to arrangement and apparatus furnished by the Missouri Smoke Preventer Company, to be applied to eight boilers as designated by the water commissioner at,” etc., from which it is inferable, that' the water commissioner had in his mind’s eye, as a model, plaintiff’s device.. Thereupon the commissioner of supplies advertised for sealed proposals as per the water commissioner’s requisition. Thereupon plaintiff submitted a written bid, and this bid was accepted November 28, 1902, and approved by the proper officer.

It stands conceded that plaintiff’s bid referred • to and was based upon certain existing specifications and requirements formulated by city officers and filed in the proper office, viz.:

“Smoke Consume».

“Steam jets with suitable valves to control the steam supply for same and auxiliary apparatus, equal, for the purpose intended, to arrangement and apparatus furnished by the Missouri Smoke Preventer Company to be applied to eight boilers as designated by the "Water Commissioner at High Service Station No. 2, Bissell’s Point.

“Furnish all necessary material and labor and make all necessary alterations in boilers and settings, and install device complete ready for operation.

“Each boiler to be provided with not more than fifteen steam jets introduced through the hollow stay bolts in sides of furnace and if found necessary to use steam jets at the front of boilers these jets may be introduced through fire doors and also through not more than three hollow stay bolts through front water space of the boiler. Make proper arrangements for introducing the requisite amount of heated air to furnace. Steam at a pressure of not less than eight pounds per square inch to supply the jets will be -furnished by an auxiliary steam boiler or through a special steam pipe from High Service Station No. 1.

Guarantee: The contractor must guarantee the smoke preventing apparatus in the following points, viz.:

“Guarantee not to injure the crown sheet or fire box or any part of the boilers, in the installation of the device nor during actual operation of same by impingement of the flame created by the agency of the steam jets or otherwise.

“Guarantee to prevent the issuing from the stack of dense black or thick gray smoke, and further, the device must operate entirely in compliance with all smoke ordinances of the city of St. Louis and laws of the State of Missouri, and also to the entire satisfaction of the water commissioner of the city of St. Louis.

“Guarantee to prevent the issuing of smoke as above specified when burning bituminous coal from Southern Illinois at any rate up to thirty pounds per square foot of grate surface per hour.

“Guarantee not to decrease the efficiency of the boilers more than three per cent, i. e., the pounds of water evaporated per pound of coal from and at two hundred and twelve degrees after making deductions for the amount of steam actually used by the jets, shall not be more than three per cent less with the device in operation than when the device is not in use, when burning Southern Illinois bituminous coal of practically the same heat value, and at approximately the same rate per square foot of grate surface per hour in both cases.

“Guarantee that the smoke prevention device shall not decrease the present maximum steam generating capacity of the boilers.

“If, after sixty days’ test, the water commissioner is not entirely satisfied with the operation and durability of the device in every respect, same shall be removed and the boilers and settings left in as good condition as they were before the device was installed, all without cost or expense to the city of St. Louis.

“During the sixty days’ operation and all tests of the device, the boilers shall be fired by the regular firemen employed by the water works of the city of St. Louis.

“The time and manner of doing the work shall be under the control of the water commissioner and all material and workmanship shall be subject to his inspection.

“The water commissioner will make all necessary tests during the sixty days’ run to determine efficiency of .smoke prevention, efficiency of boilers, consumption of steam for the jets, etc., and his conclusions and deductions in the premises shall be final.

“Full payment will be made after sixty days’ test if all the conditions herein have been complied with, and provided the apparatus and the operation of same is satisfactory to the water commissioner in every, respect.

“A deposit of three hundred dollars is required to guarantee the satisfactory installation of the device and removal of same in case it is so ordered by the water commissioner.

“The device to be installed complete within sixty days after notification of award.

“Each bidder must submit satisfactory evidence that the device which he proposes to install has been in successful operation under similar conditions to those proposed, and must submit with his bid' drawings showing the design of the device or apparatus which he proposes to furnish.”

On the acceptance of plaintiff’s bid, the commissioner of supplies placed the following order with plaintiff:

“Office of Commissioner of Supplies,

“Room No. 317, City Hall,

“St. Louis, Nov. 28, 02.

“Missouri Smoke Preventer Co.

. “Sir: — Please furnish the following articles for above-mentioned at prices as set forth in your bid dated ............ Steam jets with suitable valves to control the steam supply for same and auxiliary apparatus, equal for the purpose intended, to arrangement and apparatus furnished by the Missouri Smoke Preventer Co., to be applied to eight boilers as designated by the water commissioner at High Service Station No. 2, Bissell’s Point, as per specifications on file in office of water commissioner.

“For the net sum of....................$2,000.

“Deposit of $300 made on above, 11 — 28—1902.”

The phrase in the foregoing order, “as per specifications on file in office of water commissioner,” refers to the requirements and specifications hereinbefore set forth.

The petition avers the advertisement for bids, the bid of plaintiff in writing to furnish and install eight of plaintiff’s devices for two thousand dollars, the acceptance of that bid as required by the ordinances of the city, the order for the smoke consumers, and goes on as follows:

“Plaintiff further states that, in compliance with the terms of said contract and award, it deposited with the commissioner of supplies of defendant the sum of three hundred dollars, and, within the time limited by said conditions, to-wit, January 10, 1903, furnished and delivered to defendant at the High Service Station No. 2, Bissell’s Point, eight smoke preventing or consuming appliances complying in all respects with the conditions and guarantees hereinbefore set forth, and with the specifications on file in the office of the water commissioner of defendant, and', within the time limited in said conditions installed six of said appliances, applying and attaching them to six of the boilers, at said High Service Station designated by the water commissioner of defendant. That the same were for the full period of sixty days subject to such tests as the water commissioner wished to apply, and were by the said water commissioner fully tested for and during the period of sixty days as required by the conditions of said award, and were found and ascertained to be in conformity with all of the conditions of said award, and were found to comply with and fulfill all of the guaranties accompanying said award and were satisfactory to the water commissioner of defendant.

“Plaintiff further states that it now is and has been at all times since the said award was made to it, ready and willing to install the remaining two smoke preventing or consuming appliances called for by the terms of said award and furnished by it as aforesaid similar in all respects to the six it installed as aforesaid, But the water commissioner of defendant has failed and refused though often requested to designate any boilers to which they should be attached, or ap-. plied.

* ‘Plaintiff further states that although it has fully performed said contract or award upon its part, and has done and performed all things necessary to be done and performed by it thereunder, save in so far as it has been prevented by the defendant as aforesaid, yet defendant has failed and refused, though often requested, to pay to plaintiff the said sum of two thousand dollars due to it under the terms of said contract or award or any part thereof, and has failed and refused to return to plaintiff the three hundred dollars deposited by it as aforesaid.

“■Wherefore,” etc.

The answer makes certain admissions and denials. Among other things, it denies that plaintiff complied ■with the conditions, guaranties and specifications accompanying the award, denies performance on the part of plaintiff, and then goes on in affirmative averments to furnish a list of ten particulars in which plaintiff defaulted, viz:

“1st. That the fire doors connected' with the said boilers were of poor workmanship, not-properly fitted to the boilers and not suited to the service to be rendered thereby.

“2nd. That the plaintiff did not make proper arrangements for introducing the requisite amount of heated air to the furnaces.

“3rd. Said appliances furnished by the plaintiff did not prevent the issuing from the stack of dense black or thick gray smoke; did not operate entirely, nor at all, in compliance with the smoke ordinance of the city of St. Louis, and the laws of the State of Missouri, nor to the satisfaction of the water commissioner of the defendant.

“4th. That the said advertisement, bill and acceptance were made under the provisions of an ordinance of defendant city numbered 20655, and approved April 17, 1902, by which it was provided among other things as follows, to-wit:

“ ‘Section 1. The Board of Public Improvements is hereby authorized and directed to make all necessary alterations in and attachments to the boiler plants at the Chain of Rocks and High Service Station No. 2, so as to abate the smoke.’

“But that the said alterations and attachments to the said boilers at Station, No. 2 were not made by the plaintiff so as to abate the smoke.

“5th. That the- said appliances decreased the efficiency of the boilers more than three per cent, that is, the pounds of water evaporated per pound of coal, from and at two hundred and twelve degrees, after making deductions from the amount of steam actually used by tbe jets were at all times more than three per cent less with the device in operation than when the device was not in use, when burning Southern Illinios bituminous coal of practically the same heat value, and ' at approximately the same rate per square foot of grate surface per hour in both cases.

“6th. That the said smoke prevention device did decrease the maximum steam generating capacity of the boilers.

“7th. That although the water commissioner was not satisfied with the operation and durability of said device, the plaintiff failed to remove the same and to leave the boilers and settings in as good' condition as they were in before the device was installed, and without cost and expense to the city of St. Louis.

“8th. That the plaintiff agreed, as one of the conditions of his said contract, that the conclusions and deductions of the water commissioner of the defendant, ‘to determine efficiency of smoke prevention, efficiency of boilers, consumption of steam for the jets,’ etc., should be final; but that plaintiff failed and refused so to do.

“9th. That the plaintiff did not submit satisfactory evidence that the device which he proposed to install had been in successful operation under similar conditions to those proposed, and did not submit with his bid drawings showing the design, of the device or apparatus which he proposed to furnish. 1

“10th. That plaintiff failed satisfactorily to install said devices, and to remove the same when it was so ordered by the water commissioner.

“Defendant further states that it has done and performed all the things required of it in the said specifications and conditions.

“Defendant states further that after the said smoke prevention device of “the plaintiff had been fully tested by the water commissioner of defendant, as required by the said contract, the defendant notified the plaintiff that said device was unsatisfactory in operation, that its guaranties in respect thereto had not been fulfilled; that said device had been rejected; and requested plaintiff to remove the same from defendant’s boilers and premises.

“Wherefore,” etc.

By way of further answer, defendant" pleads a counterclaim of two items, aggregating eleven hundred dollar's, grounded on charges that plaintiff damaged defendant in and about the subject-matter of the contract in sundry ways pointed out. But it will be unnecessary to consider the counterclaim at large. One of its specifications alone concerns us, viz: the allegation that plaintiff failed to remove its device as it agreed to do without cost and expense to defendant. Defendant’s evidence in support of the counterclaim was directed to this particular charge; and at the close of its case the following announcement was made and comes here as part of the abstract of the record: * ‘ The defendant’s counsel then stated that he would offer no further evidence under the counterclaim, but would be content with the evidence already in as to the cost of the removal of plaintiff’s device, which amounted to more than the deposit of three hundred dollars, which the plaintiff made for the purpose- of protecting the city in this respect.”

The reply was in effect a denial of new matter.

After the evidence was in, fully uncovering the facts, the learned trial judge took time to consider. Eventually he made findings of fact and announced his conclusions in writing. The defendant prayed and was refused certain instructions. Other instructions were allowed. But in a law case tried to the court sitting as a jury the force of instructions is spent on showing the theory of the trial court; and in this instance that theory is exploited in Judge Sale’s findings and conclusions, reading in part as follows:

“No more than six of the devices were ever in fact attached to the boilers of the defendant, but the plaintiff actually furnished the eight devices called for in the contract, and the reason why the remaining two devices were not attached to the boilers, as stated both by Mr. Obear, witness for plaintiff, and Mr. Fiad, witness for the defendant, was that only six boilers were furnished by the city to which the smoke preventer devices could be attached. Mr. Fiad in his testimony says he never gave permission to attach the devices to more than six boilers. The contract is set out in the petition and likewise in the answer.

“In my view of the case it is unnecessary to consider the question whether plaintiff complied with its guaranties, although I am free to say that if the decision of the case rested upon the solution of that question, I would have little hesitancy in holding that the guaranties were not fulfilled, at least to the satisfaction of the water commissioner. It is unnecessary to state wherein the plaintiff failed to comply with its guaranties. The contract provides that the device, that is, the smoke preventer devices, should be installed complete within sixty days after notification of the award, that is, the plaintiff after notification of the award to it had sixty days in which to completely install the devices. On the other hand, while the contract is not altogether clear, I am satisfied that its purpose and intent were to give the city a period of like duration, that is, sixty days, within which to make all tests necessary or deemed to be necessary by the city. The clauses in the contract which lead to the conclusion that all tests must be made within sixty days are the following;

“ ‘If after sixty days’ test the water commissioner is not entirely satisfied with the operation and durability of tbe device in every respect, same shall be removed and the boilers and settings left in as good condition as they were before the device was installed, all without cost or expense to the city of St. Louis.’

“ ‘During the sixty da vs’ operation in all tests of the device the boilers shall be fired by the regular firemen employed by the Water Works of the city of St. Louis, Missouri.’

“ ‘The water commissioner will make all necessary tests during the sixty days’ run to determine the efficiency of smoke prevention, efficiency of boilers, consumption of steam for the jets, etc., and his conclusions and deductions in the premises shall be final.’

“ ‘Full payment will be made after sixty days’ test, if all the conditions herein have been complied with, and provided the apparatus and the operation of the same is satisfactory to the water commissioner in every respect.’

“It is admitted that the smoke devices were installed on the six boilers, which were all that the plaintiff was permitted to install, on January 10, 1903; that on January 12, 1903, notice in writing was furnished to the city by letter addressed to the water commissioner to the effect that the devices had been installed and were ready for operation. On January 30, 1903, the city notified the plaintiff that on February 3, 1903, a test would be made. A test was made on that day, but no record kept of the results. It seems to have been what is termed a smoke test. On February 10, 1903, notice was given that a test would be made on the following day. This seems to have been a boiler test. Nothing was done by the city after the two tests above mentioned. The city neither accepted nor rejected the devices after the tests of February 3, and February 11, 1903. On March 13, 1903, notice was given that a third test would be made on the following Monday and Tuesday, that is to say, on March 16 and 17,1903; and on March 21, 1903, the defendant by letter notified the plaintiff that the tests made on the sixteenth and seventeenth of March proved unsatisfactory and that the devices were rejected. The above facts are not disputed. It is understood that the final tests and the only tests upon which the city of St. Louis took any action were made on March 16 and 17, 1903, and four days thereafter, to-wit, March 21, 1903, the city notified the plaintiff of its rejection.

“On February 11, 1903, one test of six hours’ duration was made. On March 16,1903, one test of'eight hours’ duration without the smoke preventer device was made, and on March 17, 1903, one test of eight hours’ duration with the device in operation was made. On the two last tests of March 16 and 17, each test consuming eight hours in the making, the defendant based its rejection of the devices. It is evident, therefore, that these devices could be tested in one, or at most two days, so as to determino whether the devices fulfilled the guaranties made in the contract. The contract speaks of a sixty days’ test and of sixty days’ operation. The evident meaning of the contract and the evident intention of the parties was to give the city of St. Louis sixty days in which all necessary tests must be made. Within that period the water commissioner could determine the time and manner of doing the work, as the contract provides, ‘ That the time and manner of doing the work shall be under the control of the water commissioner ¿nd all material and workmanship shall be subject to his inspection. ’

At any time within the sixty days the city, by its officials, could have determined the efficiency of the device in eight hours, or could make a complete test with and without the device in sixteen hours, which was the time actually consumed by the last test. The sixty days within which the tests must be made certainly begin not later than January 12, 1903, the day on which the notice in writing was furnished to the city that the devices had been installed. . . .

“It is not necessary to decide whether the defendant had a reasonable time after the lapse of sixty days from January 12,1903, within which to notify the plaintiff of its acceptance or rejection of the device. Inasmuch as the contract entitled the plaintiff to full payment after sixty days’ test, provided the apparatus and the operation of the same proved satisfactory to the water commissioner, the money due under the contract became due immediately upon the expiration of the time within which the test should be made. The defendant was no more entitled to extend the time within which the test must be made to seventy days, than it would have been entitled to extend the time to one hundred days or to any other fixed time except that indicated by the contract. If such is not the correct interpretation of this contract, the clause with reference to making full payment after sixty days’ test is absolutely meaningless. When it is remembered that the actual test upon which the city based its action was made in sixteen hours, it seems impossible to escape the conclusion that sixty days from the installation of the devices was the limit within which the city agreed to make all necessary tests. The water commissioner having failed to make all necessary tests during that sixty days to determine the efficiency of smoke prevention, the efficiency of boilers, consumption of steam for the jets, as provided by the contract, the devices became the property of the city and must be paid for by it.....

“Certain of defendant’s instructions are given. I find nothing in the evidence which would justify me in concluding that defendant delayed making its tests at request of plaintiff. On all occasions defendant selected' its own time without hindrance on part of' plaintiff. If the commissioner had undertaken to base conclusions on February 3 and 11 test, it would have been unreasonable to delay his conclusions until March 21, 1903. It was not and cannot be contended herein that the city’s action was based on. any tests except that of March 16 and 17,1903.”

I have gone over the record, line upon line, and find there was substantial evidence upon which the trial court could well base its finding of facts. Those facts as found are therefore adopted for the purposes of this opinion.

As there is a contention made that the sixty days in which the city contracted to make the tests did not commence to run on January 12, 1903, it may be well to say that the record discloses the devices were installed before that day and plaintiff gave notice by word of mouth to that effect. Thereupon a written notice was requested by the water commissioner, and on January 12,1903, such formal written notice was given. The only sensible purpose to be assigned to the request for a written notice and the giving of one is that assigned by the learned trial judge, to-wit, that such written notice marked the day on which the duty of plaintiff to install the devices ended and also the day on which defendant’s duty to test the devices began. As bearing upon the intent of the parties to the contract, it may further be said that the installation of the devices involved apparently no inconsiderable labor and expense on plaintiff’s part.

The record shows that the city at an undisclosed date removed the devices and cast them aside. The learned trial judge said,he “would have little hesitancy in holding that the guaranties were not fulfilled, at least to the satisfaction of the water commissioner. ’ ’ Attending to that language, and in justice to all concerned, it may be said that there is no charge or proof of fraud or caprice connected with the acts and decisions of the water commissioner. It will, furthermore, tend to define the issue of law in this case to say that the testimony of defendant would have warranted the trial judge in going further and in finding that the guaranties were not fulfilled. Defendant’s proof tended to show that the devices, as- indicated by the tests, somewhat abated but did not prevent “dense black” or “thick gray” smoke escaping from the smoke stacks; that the fire doors put on by plaintiff were not properly fitted; that the percentages of dinker and ash were increased by the use of the device; that the noise in its' use was aggravating; that it took more firemen to use it; that the efficiency of the boilers was decreased more than three per cent; that the steam pressure fluctuated unusually, and so on.

The case, then, may proceed on the theory that, assuming the facts, not only as found by the trial judge but as indicated above, to be true, the question to be adjudged may be sharply defined to be this: Is the law applicable to those facts correctly stated in the conclusions of the trial court?

I. The law of sales is full of complexity and subtlety in many of its phases. To meet the ends of justice between man and man, that law adjusts itself to cover the shifting details born of ingenuity in affairs of traffic and dicker.' Therefore, at the outset in considering the case at bar, to prevent misunderstanding and to fetch a compass, it may be well to get at the matter in judgment by a process of elimination, i. e., by pointing out some matters not in judgment. For instance, this is not a case where the title to chattels admittedly passed from plaintiff to defendant and where defendant, when sued for the purchase price, claims damages because of broken warranties, express or implied, running with the chattel, i. e., kept alive and operative after sale and delivery. The law of such eases, therefore; is not applicable here. Nor is this a case where a buyer complains that he was induced to purchase and take title on the strength of misrepresentations of quality and fitness relied on By him and made by the seller. It will be observed defendant in this case does not undertake to recoup, by way of defense to the purchase price, any damages in the difference between what the chattel would have been worth if marketable or as represented and what it was actually worth at the place of delivery. There is no fraud in the' case at bar. Nor is the ease a sale by sample where the thing delivered does not come up to the sample. Nor is it a case where it is contended that the thing sold had no value.

The case in judgment is one in which it is conceded on all hands that the title to the smoke preventing devices did not pass out-and-out to defendant at the start. At best it passed only sub modo, if at all. Such case is spoken of in the books as “a sale on trial.” It has elements in common with sales known as “sale or return, ’ ’ and ‘ ‘ sale if satisfactory. ’ ’ The city reserved an option to let the out-and-out title pass and the ultimate and controlling question is: Did such title ever pass?

II. The specifications prepared by the city and referred to in the proposal must be interpreted somewhat contra proferentem. They were so formulated as to give the city an important option, to-wit, the right to test the device for sixty days to determine its efficiency. With that right went a duty. During those sixty days plaintiff was exposed to the hazard of losing his expenses and outlays in installing the device, and of the impairment of the device by use in experiments. The contract does not expressly make time of its essence. But in view of the manifest intent of the parties, of the subject-matter and of the option of defendant, time became of the essence of the contract by fair implication; and the trial court, therefore, did not err in holding that the city had no more than sixty days to make tests. In Hollmann v. Conlon, 143 Mo. 1. e. 378, Sherwood, J., had under exposition a contract of the class “where the vendor is bound by a cable, and the vendee by not so much as a silken thread,” and held that time was of the essence of that class of contracts. The Hollmann case is not this ease, but the principle enunciated there may be borrowed for use here. The city having sinned away its day of grace should not be allowed to reject the device as the result of experiments made after the sixty days had expired — no reasonable excuse for the delay appearing. The trial judge so held, and we concur in that ruling.

III. It was held below, ip effect, that the duty rested upon defendant, under the contract and the circumstances of this case, to give reasonable notice of the rejection of the device and for plaintiff to remove the same. It was furthermore held in the last paragraph of the finding, that, conceding arguendo that the action of the city was based on trial tests during the trial limit of sixty days, yet that the notice given on March 21,1903 (eight or nine days after the expiration of the trial limit), was not reasonable notice.

Wé have' no difficulty with the last proposition. One trouble with the notice of March 21 was that it was based on experiments made after the sixty days’ trial limit had expired. The trial court found that plaintiff did not ask for an extension of time to make further experiments, that no extension was arranged for, but that defendant set the time of its experiments to suit itself. There was some little conflict in the testimony in the last particular, but on appeal we have nothing to do with that. "What is reasonable notice in some cases might be a question of law; but ordinarily it is a question of mixed law and fact, and in this case it was an issue of fact to be submitted' to the court sitting as a jury. The point was close, but the court found against defendant on that issue and set forth the grounds upon which it based its finding. We find no fault with them.

It is a settled rule of law that, under the conditions shown, by this proof, plaintiff was entitled to a reasonable notice of disapproval. [Esterly v. Campbell, 44 Mo. App. 1. c. 625; Mechem on Sales, sec. 661; . Turner v. Machine & Foundry Co., 97 Mich. 1. c. 174; Columbia Rolling Mill Co. v. Beckett Foundry & Machine Co., 55 N. J. L. 391; Waters Heater Co. v. Mansfield, 48 Vt. 378; Spickler v. Marsh, 36 Md. 222; Butler v. School District, 149 Pa. St. 351; Kahn v. Klabunde, 50 Wis. 235; Dewey v. Erie Borough, 14 Pa. St. 211; Springfield Engine Stop Co. v. Sharp (Mass.), 68 N. E. 224; Thompson-Houston Electric Co. v. Brush-Swan Electric Light & Power Co., 31 Fed. 535; Gibson v. Vail, 53 Vt. 476.]

IY. The case, then, has progressed to the point where it must be taken as already determined that de- > fendánt, under the proof, had sixty days only in which to make tests, that plaintiff was entitled to reasonable notice of the result of those tests, or at least of the rejection of the device; that such notice' was not given, and that the notice given was based on tests made after the trial limit. This brings us to the main, proposition in the case, vis: It was held below that in this condition of things the title finally vested in defendant out-and-out, that it became the owner of the smoke preventers, and, under the proof and in the condition of the pleadings, must pay for the same. Of course, if defendant was bound to pay for the smoke preventers, then a counterclaim, based on the theory that plaintiff was obliged to remove them and that defendant was damaged to the amount of plaintiff’s deposit by plaintiff’s failure to remove, can have no standing in the case.

Did the court, nisi, rule rightly in the foregoing holding? We think so, because:

Obviously, if defendant saw fit it could make a contract in which it exacted certain requirements of fitness and quality in a device it desired to own. Obviously, too, if the other party to the contract agreed, the defendant could make a contract in which it was to be the sole judge of fitness and quality and in which it reserved the right to pay on being satisfied after making tests. That is precisely the contract made here. Defendant’s learned counsel argue that the city was not satisfied and never accepted the device. Therefore, they say, the obligation to pay does not exist. Plaintiff’s learned counsel do not argue that the city by express, words accepted the device or announced satisfaction through its water commissioner.’ They argue that the city’s satisfaction and acceptance arose by implication from its failure to reject the device and give notice in reasonable time.

Mr. Benjamin lays down the rule to be (Benj. on Sales [7 Am. Ed.], sec. 595) as follows: “Other instances of sales dependent on conditions precedent are afforded by ‘sales on trial,.’ or ‘approval,’ and by the bargain known as ‘ sale or return. ’ In the former class of cases there is no sale till the approval is given, either expressly or by implication resulting from keeping the goods beyond the time allowed for trial. In the latter case the sale becomes absolute, and the property passes only after a reasonable time has elapsed without the return of the goods. In sales ‘on trial,’ the mere failure to return the goods within the time specified .for trial makes the sale absolute, but the buyer is entitled to the full time agreed on for trial, as he is at liberty to change his mind during the whole term, and this right is not affected by his telling the vendor in the interval that the price does not suit him, if he still retains possession of the thing. ’ ’ •

It was rightly pointed ont in Esterly v. Campbell, 44 Mo. App. 1. c. 623, et seq., by Ellison, J., that Mr. Benjamin states the rule too broadly in his text, in that the mere failure to return will not perfect the sale except it be a part of the agreement that return shall be made. The learned judge comments as follows (p. 624): “If it had stated the failure to return, offer to return or to give notice of dissatisfaction, it would have been more consistent with the law as .declared by adjudications. ’ ’ The treatise of Mr. Benjamin has received the distinguished and uncommon honor of being made the basis of An Act of the English Parliament in 1893 known as the Sale of Goods Act, wherein it was attempted to codify the law of sales. It so nearly follows the lines of his treatise, that the last English edition (5 Ed. 1906) is built on and around the Sale of Goods Act. Sec. 18, Rule 4, of that Act (Benj. on Sales [5 Eng. Ed.], p. 328) is as follows:

“Rule 4. When goods are delivered to the buyer on approval or ‘on sale or return’ or other similar terms the property therein passes to the buyer:

“(a.) When he signifies his approval or acceptance to the seller or does any other act adopting the transaction:

“(b) If he does not signify his approval or acceptance to the seller, but retains the goods without giving notice of rejection, them, if a time has been fixed for the return of the goods, on the expiration of such time, and, if no time has been fixed, on the expiration of a reasonable time. What is a reasonable time is a question of fact.”

It would seem the English statute is practically declarative of the common law. [See authorities cited under paragraph 3 of this opinion.]

The failure to notify the plaintiff of its dissatisfaction and to remove the smoke preventers within a reasonable time, raised the implication of acceptance. That acceptance passed the title to the city and created, the obligation to pay in the condition of the proof and in the present state of the pleadings.

This being so, the judgment below was right and should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    JOHNSON et al., Appellants, v. ANTRIKEN et al.
    Division One,
    June 29, 1907.
    PARTITION: Advancements: Collateral Kindred. Where intestate died without children or other descendants, the law does not compel his collateral kindred to bring into hotchpot lands conveyed to them by intestate during his lifetime. The statute (sec. 2913, R. S. 1899) requires children and grandchildren to bring in the advancements made to them, but it does not require collateral kindred to do so, nor did the common law or custom of London, and the courts will not write into the statute something that is not there.
    Appeal from Christian Circuit Court. — Hon. Asbwry Burhhead, Judge.
    Reversed and remanded.

      G. Purd Hays and G. A. Watson for appellants.
    The facts in this case, as admitted by the pleadings and shown by the evidence, are that Joseph Lebow died intestate and without issue. The plaintiffs are nephews and nieces of Joseph Lebow, to whom Lebow in his lifetime had given a certain tract of land in the State of Tennessee. Defendants claim that plaintiffs should be compelled to bring the land given to them into hotchpot with the brothers and sisters of Mary Lebow, the deceased wife of Joseph Lebow, and share ■with them as children and grandchildren do in case of an advancement. There is no rule of law that recognizes the doctrine of advancement except in case of children or grandchildren. The deed given to Lucy L. Johnson, et ah, the plaintiffs, was a gift from their nncle, Joseph Lebow, in his lifetime. 1 Bouvier’s Law Dictionary (14 Ed.), defining Hotchpot and Advancements; R. S. 1899, secs. 2913 and 2914; 4 Kent’s Com. (8 Ed.), 4.42 to 446; 2 Blacks tone’s Com. (19 Ed.), pp. 154 to 156; 14 Mo. 495; Estate of Wm. Gr. Williams, 62 Mo. App. 339.

      Charles Farrar and Jacob Hartley for respondents.
    The court committed no error in dismissing plaintiffs’ petition when they, failed and refused to bring their advancement into hotchpot, the evidence of disinterested witness proving conclusively that the advancement was made by Joseph Lebow to plaintiffs herein in lieu of all the interest they might have as his heirs at law in his estate at the time of his death, which said advancement was received by them with full knowledge at the time of grantor’s intention. A voluntary deed of conveyance without consideration to one’s known heirs raises the presumption that it was intended as an advancement. Ray v. Loper, 65 Mo. 470; Ladd v. Stephens, 147 Mo. 319. Where property is given by an ancestor to his heirs without consideration, it is presumed to be an advancement, and in a partition suit must be brought into hotchpot. In re Estate of St. Yrain, 1 Mo. App. 294; Lisles v. Huffman, 88 Mo. App. 143; Ray v. Loper, 65 Mo. 470; Ladd v. Stephens, 147 Mo. 319. The term “children” as used in section 2913, Revised Statutes 1899, is a generic term, and is used interchangeably with “children,” “heirs at law,” “grandchildren” or “descendants,” and the Statute of Descents and Distribution only directs the general •rules of inheritance and does not specify who are children, heirs, husband or wife, etc. Copenhaver v. Copenhaver, 9 Mo. App. 200; 78 Mo: 55; In re Elliott’s Estate; 27 Mo. App. 218; Waddle v. Waddle, 99 Mo. 339; Maguire v. Moore, 108 Mo. 267; Fanning v. Doan, 128 Mo. 323; Aull v. Day, 133 Mo. 337; Tiedeman. on Beal Property, sec. 672; 79 N. Y. 246; Jones v. Jones, 118 N. C. 440.’
   WOODSON, J.

This was a suit instituted by plaintiffs against the defendants in the circuit court of Christian county,- asking for a partition of certain lands, fully described in the petition.

Joseph Lebow died seized of the lands, intestate, without issue. Plaintiffs and defendants are his collateral heirs at law. Prior to his death, for and in consideration of love and affection, he conveyed by a general warranty deed certain lands, located in the State of Tennessee, to the. plaintiffs. The defendants claimed, and the evidence tended to show, and the court found, that said conveyance to plaintiffs was made to them as an advancement.

Plaintiffs refused to bring those lands into hotchpot, and the court found the issues for defendants, and entered judgment accordingly.

In due time plaintiffs filed a motion for a new trial, which was, by the court, overruled, and they have brought the case to this court by appeal.

I. The sole question presented by this record is, should the plaintiffs be compelled to bring the land conveyed to them into hotchpot? If so, the judgment was for the right parties; but if not, then the judgment should be reversed and the cause remanded for another trial.

The plaintiffs contend that the conveyance of the land in Tennessee to them was a voluntary gift, and that they cannot be required to bring it into hotchpot. because that law applies only to children and grandchildren and not to collateral heirs.

The statute requiring advancements to be brought into hotchpot is as follows: “"When any of the children of the intestate shall have received, in his lifetime, any real or personal estate,- by way of advancement, shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended.” [R. S. 1899, sec. 2913.]

This section of the statute requires only children of an intestate who have received advancements to bring them into hotchpot before they can share with the other children in the estate of the intestate; but the Kansas City Court of Appeals has .construed it to mean grandchildren also. [Estate of William G. Williams, 62 Mo. App. 339.]

In that construction we concur, and, for the reasons therein stated, think the conclusion reached is sound. If the father is required to bring in the advancement, we can see no good reason why his children should not be required to account for that part of the estate which their father has received as his share. Otherwise, he and they would receive a double moiety of their grandfather’s estate.

But the statute does not require any collateral heir to bring in advancements made to them before they can participate with other collateral heirs in the distribution of an estate. If it did, then we might be justified in holding that .their descendants should be compelled to account for the advancements in the same manner that the descendants of lineal heirs are required to account; but as no such requirement is made of the collateral heirs, we do not feel justified in writing any such provision into the statute.

The common law made no such requirement, and the custom of London gave that right only to the lineal heirs of the intestate. [Estate of Wm. G. Williams, 62 Mo. App. 339.]

We have been cited to no case or text-book which bears ont defendants’ contention, nor have we, after diligent search, been able to find any snch. Such a construction of the statute as‘contended for by the defendants would be a judge-made law, pure and simple.

For the reasons herein stated, the trial court erred in denying plaintiffs’ right to a partition of the land without first bringing into hotchpot the alleged advancements.

The judgment is reversed and the cause remanded for another trial according to the views herein stated.

All concur.


text:
    BAUMHOFF v. ST. LOUIS & KIRKWOOD RAILROAD COMPANY, Appellant, and ST. LOUIS UNION TRUST COMPANY.
    Division One,
    June 29, 1907.
    1. CORPORATION: Suit to Compel issue of Stock. Where the pecuniary value of corporate stock is not provable and where in consequence one may not have adequate damages at law, he is not remediless against those who withhold such stock as he is entitled to, but a suit for specific performance of a contract to deliver lies.
    2. -: -: Power of Law Court: Equity: Res Adjudicata. Where a law court determined that plaintiff, in his suit for a contractor’s lien, was entitled to a money judgment,’ and also under his contract to certain capital stock of defendant company, and awarded him execution to satisfy the money judgment, but found that the pecuniary value of the stock was not provable and awarded him no satisfaction for his established right thereto, because the arm of the law court was too short to give him a complete remedy, the matter is not so far res adjudicata that plaintiff 'may .not bring a proceeding in the nature of an equitable execution to enforce that judgment at law, by the issue of the stock to him.

      3. -: -: -: -: -: This Caso. Plaintiff by contract to construct a railroad was to receive two hundred and fifty thousand dollars in bonds, twenty-five thousand dollars in stock and five thousand dollars in bonus, and the stock and bonds were placed with a trust company to be delivered to him on the performance of the work. He sued the railroad company by a contractor’s lien and joined the trust company as a defendant, and at the suit, after answer, the bonds, which had been delivered to him, were paid, and he then dismissed as to the trust company, and the railroad company saved no exception to the dismissal. Afterwards the railroad company asked leave to amend its answer so as to raise the question of defect of parties defendant, but leave was refused, the court saying: “I do not see how an order could issue to the trust company to turn over the stock to plaintiff.” The court at the trial found full performance by plaintiff of his contract, awarded him a lien on the road for the $5,000 bonus with interest, adjudged that he was entitled to receive $25,000 of the paid-up stock of the railroad company, found that said stock was not shown to possess any pecuniary .value, and awarded him no lien on the company’s property therefor. Eeld, that plaintiff’s right to receive the stock was established by that judgment, that no remedy for the enforcement of that right was afforded by that judgment, since the court possessed no equitable powers in that suit at law, and hence his right to satisfaction of his claim thereby established did not become res adjudicada, and that he is entitled to maintain a proceeding in the nature of an equitable execution based on that judgment to compel the railroad company and the trust company to issue to him the twenty-five thousand dollars of stock.
    4. -: -: -: Judgment in Lien Case. A judgment in a lien case determining that plaintiff was entitled to certain stock of defendant corporation established his absolute right to that stock, and all reagitation of that question was thereby concluded, as between plaintiff and defendant, in a subsequent suit to compel the delivery of the stock. But where the court in response to an instruction asked by defendant, went further and found that no damage for conversion of the stock could be enforced by way of a lien, and found that no pecuniary value was established for the stock, and was of the opinion that it could not grant relief in kind, the suit being ' one at law, it will not be held that the court undertook to assess plaintiff’s damages on the stock at nothing, or that plaintiff was thereafter precluded from claiming the stock itself.
    5. _: -: -: -: Different Object": Verdict as Evidence. Where the cause or object of the actions is different, though the point in dispute is the same in both, the prior judgment is no bar to the subsequent action, but the verdict is matter of evidence to prove the point.
    6. -: -: -: -: Multiplicity of Suits. The rule against the splitting of causes of action does not obtain where there is one contract but the performance is several. Plaintiff may bring his suit under his contract to establish his contractor’s lien against defendant railroad company to enforce his right to certain money which by the contract was to be paid to him for performing certain construction work, and also to establish his right to certain certificates of the capital stock of defendant which by the same contract were also to be issued to him for performing that work, and he may subsequently bring his suit against the same defendant and against a trust company which held the stock in escrow, to compel the delivery of that stock to him. Though the two causes of action arose out of the same contract, the performance is several.
    Appeal from St. Louis City Circuit Court. — Hon. Robert M. Foster, Judge.
    Aketrmed.

      Jefferson Chandler, T. M. Pierce and 8. P. Mc-Chesney for appellant.
    (1) The court erred in holding that the former suit was not res adjudicata, and did not finally dispose of the suit in controversy. Railroad v. U. S., 168 U. S. 48; Weir v. Moreley, 99 Mo. 490; Hahl v. Sugo, 169 N. T. 109; Hesser v. Johnson, 76 Pac. 320; Railroad v. Beebe, 18 Pac. 502; Folsom v. Clemens, 1991 Mass. 473; Hausted v. Des Moines, 63 Iowa 36; Herriter v. Porter, 23 Cal. 385; Morey v. King, 51 Ya. 383; Milroy v. Mining Co., 43 Mich. 231; Memmer v. Cary, 30' Minn. 458; Railroad v. Henlien, 56 Ala. 368; Tootle v. Kent, 76 Pac. 310; Mellier v. Dawson, 74 S. W. 953; Madden v. Smith, 28 Kan. 798. (2) The court erred in holding that- plaintiff could split up his pause of action and could legally maintain the present suit. Hoffman v. Hoffman, 126 Mo. 497; Koenig v. Morrison, 44 Mo. App. 411; Railroad v. Traube, 59 Mo. 355; Comstock v. Davis, 51 Mo. 569; Lumber Co. v. Agricultural, etc., 59 Mo. App. 24; Steinkamp v. McMannus, 26 Mo. App. 52; R. S. 1899, secs. 4249-4251; Lawrence v. Porter, 63 Fed. 64.

      Lehmann & Lehmcmn for respondent.
    (1) The judgment in the former suit cannot operate as a bar to this suit, because it was not a judgment upon the merits against plaintiff, but, on the contrary, determined the right involved in his favor. 2 Black-on Judgments, sec. 693; Gould v. Railroad, 91 TJ. S. 526; Baldwin v. Davidson, 139 Mo. 118 ; Verhein v. Schultz, 57 Mo. 326; Winham v. Klein, 77 Mo. App. 36; Taylor v. Larkin, 12 Mo. 103; Wells v. Moore, 49 Mo. 229; Bell v. Hoagland, 15 Mo. 360; Springfield v. Plummer, 89 Mo. App. 515; Nickerson v. Stage Co., 10 Cal. 520; Vinal v. Const. Co., 53 Hun 547; Geary v. Bangs, 138 HI. 77; Railroad v. Saxton, 7 N. M. 302; Sease v. Dodson, 34 S. C. 345. (2) A single cause of action cannot be split, but a single contract may give rise to several causes of action. William v. Kitchen, 40 Mo. App. 604; Hayden v. Logan, 9 Mo. App. 492; Richey v. Branson, 33 Mo. App. 418; Boyce v. Christy, 47 Mo. 70; Perry v. Dickinson, 85 N. T. 345; Baker v. Titcomb, 32 Mass. (15 Pick.) 409. (3) Respondent having sued at law for the value of the stock, and his right thereto being established therein and recovery therefor not granted simply because the stock had no provable pecuniary value, he is not barred from bringing an action in equity for specific performance. A judgment at law dismissing a suit because there is no remedy at law, is not a bar to an appropriate suit in equity. 2 Black on Judgments, sec. 715; Wiggins Ferry Co. v. Railroad, 142 U. S. 396; Northern Assurance Co. v. Grand View Bldg. Assn., 203 U. S. 106; Clark v. Blair, 14 Fed.'812; Massey v. McCoy, 79 Mo-. App. 169; City of Oakland v. Oakland Water Front Co., 118 Cal. 160; State to use v. Bierwith, 47 Mo. App. 551. (4) Even if the suit for specific performance could have been joined with the action to enforce the mechanic’s lien, that it was not done is no bar to the present proceeding. G-arland v. Smith, 164 Mo. 1. (5) A suit for specific performance to compel the delivery of stock having no provable pecuniary value, can be maintained, and for the very reason that its pecuniary value cannot be established. Dennison v. Keasbey, 98 S. W. 546; 26 Am. and Eng. Ency. Law (2 Ed.), 122, note 3. (6) This stock belongs to plaintiff, and therefore defendant should not take it. Exodus, 20-15.
   LAMM, J.

Plaintiff, suing in equity for specific performance, sought to compel defendant trust company to deliver to him a certain certificate No. 2 for two hundred and fifty shares of the full-paid, non-assessable capital stock of the defendant railroad company, held by the former in trust under a contract, and to compel the railroad company to transfer said shares of stock to him upon its books in the manner and form prescribed by its by-laws and for such further and general relief as may be deemed just and equitable.

The decree went as prayed. The trust company made no defense so far as. disclosed and abides the decree — the railroad company (hereinafter called defendant) alone appealing.

Defendant makes two questions here. Thus: (a), “The court erred in holding that the former suit was not res adjudicata, and did not finally dispose of the suit in controversy;” and, (b), “The court erred in holding that plaintiff could split up his cause of action and could legally maintain his present suit.” -'

To dispose of these propositions understandingly, it will be necessary to summarize here the history of a former case (called herein the “lien case”), viz:

In 1895 plaintiff and defendant entered into a contract in writing whereby plaintiff agreed to build and equip for defendant an electric railroad from the limits of St. Louis city to a local point in St. Louis county, known as Meramec Highlands, on a line shown by plats called for and attached. The scheme contemplated that defendant should issue three hundred bonds of one thousand dollars each, due in twenty years, with six per cent semiannual interest coupons attached, to be secured by a good and sufficient first mortgage deed conveying to said trust company its properties, real, personal and mixed, and all its franchises, and should deliver said mortgage deed, said bonds, with twenty-five thousand dollars of its capital stock (duly endorsed by the person in whose name said stock may stand upon defendant’s books), and also certain bonus subscriptions, to the trust company, and the trust company at certain designated times should tumi over certain of said bonds to plaintiff as part payment for building and equipping said road; and, upon full performance, was to turn over to plaintiff enough more bonds to make two hundred and fifty thousand dollars in bonds, and turn over to him said twenty-five thousand dollars of capital stock and so much as five thousand dollars of said bonus, aggregating in cash, stock and bonds two hundred and eighty thousand dollars, in full consideration for due performance.

The bonds were issued, the mortgage deed executed and defendant caused to be issued a certificate for twenty-five thousand dollars in face value of its full-paid, n on-assessable capital stock, to-wit, certificate No. 2 for two hundred and fifty shares, standing in the name of one Pitman, trustee, bearing his blank indorsement, attested by its secretary, and did cause said bonds, mortgage deed, stock certificate and bonus subscription to come into the hands of said trust company, to be held and dealt with under said construction and equipment contract.

Presently, plaintiff entered upon performance, and from time to time received from the trust company part payment in bonds. There came a time when he had taken down his full’quota of bonds, and, claiming full performance, demanded of the trust company full payment. But a squabble arising at that time between plaintiff and defendant, the trust company under notice from defendant not to make full payment, declined to do so, and a suit followed.

It will be convenient to follow with some particularity, not only the pleadings, but other parts of the record in such suit (the lien case), because in those pleadings and in that record (made part of the record of the case at bar) are laid away the facts relied upon by defendant to show res judicata and a splitting of a cause of action, i. e., estoppel by record.

It seems defendant, having entered into possession of the railroad and' its equipment, turned round and leased them to another corporation known as The Highland Scenic Railroad Company. In this fix, plaintiff took steps to fasten a contractor’s lien upon the roadbed, rolling stock, etc., under article 4, chapter 47, Revised Statutes 1899,. providing for liens of contractors, materialmen and laborers against railroads, designing to make said lien have precedence over said three hundred thousand dollars incumbrance. Having in due time filed his lien paper with the circuit clerk, and served defendant and the said Scenic Company with a copy, he sued to recover thirty thousand dollars as the balance due him under his contract, and to foreclose his lien — making three corporations, viz., both the present defendants (the St. Louis Union Trust Company being impleaded under its former name of “St. Louis Trust Company”) and the Scenic Company, parties defendant.

The lien case was tried on an amended.' petition, wherein plaintiff pleaded the incorporation of the three defendants, set forth his construction and equips ment contract, averred due performance, alleged the facts entitling him to a lien, admitted the receipt of two hundred and fifty thousand dollars in bonds, by way of part payment, averred non-payment of- the stock and bonus through the wrongful interference of the railway company, and prayed judgment against the latter company (defendant here) for the sum of thirty thousand dollars balance due and unpaid under the terms of the contract and that such judgment be made a lien, that the same be foreclosed, and that the Scenic Company be compelled to show its interest and be bound by the judgment. The petition also contained an averment that the lease to the Scenic Company was “a pretended lease,” and another to the effect that the said capital stock was to be of the value of twenty-five thousand dollars, and still others questioning that defendant’s stock was full paid and non-assessable as contemplated in the contract.

The trust company filed a separate answer admitting the contract, that plaintiff entered upon its performance, the filing-of the lien paper, that the railroad company entered into possession and began operating the railroad, the deposit of the mortgage deed, bonds and stock certificate with it, and that the railroad company had notified it not to deliver the stock-to the plaintiff; but it. denied that it had refused such delivery and averred it was now willing to deliver, and had no knowledge or information sufficient to form a belief, and, therefore, could neither-admit nor deny that the stock was to be of the value of twenty-five thousand dollars. After admitting some and denying other allegations not material here, the answer pleaded matter intended to defeat any preference of plaintiff’s lien over the mortgage indebtedness, and immaterial matter relating to the bonus. The bonds having gone into circulation, the life of this answer was the protection of said mortgage indebtedness from any preference in favor of plaintiff for the unpaid contract price; and: issue was joined by a reply.

Thereafter the Scenic Company filed its separate answer, directing itself in the first instance, to the allegation that it held under “a pretended lease.” It says its lease was quite to the contrary, to-wit, “valid and lawful;” that plaintiff had abandoned Ms contract without substantial performance; had been paid an amount largely in excess of the value of Ms labor and material; that the lien paper damaged the property of the defendant as lessee, in that it stated that plaintiff's claim for a large sum of money and the account filed are “true and correct,” whereas such statement was “wholly false and defamatory and libelous;” that plaintiff “without probable cause and well knowing that the statement filed by him (to-wit, the lien paper) was wholly false, did maliciously and for the purpose of injuring tMs defendant, destroying its credit and crippling it in the operation of said railroad, utter and publish said false statement,” etc.; that it had desired to issue one hundred thousand dollars in bonds and borrow said amount, etc,, and had been unable to do so by reason of the premises; that the market value of its bonds was destroyed and they became unsalable, etc., to its damage in the sum of twenty thousand dollars, for which it prayed judgment.

The railroad company filed its separate amended answer, admitting the contract but denying performance, and setting forth a schedule Of faults, defaults, etc. Said answer admitted the execution and deposit with the trust company of the mortgage deed, bonds, stock and bonus subscriptions, averred that the stock was fully paid up and non-assessable within the purview of the scheme as understood and participated in by plaintiff, put plaintiff upon his proof on the allegations pertaining to the lien, admitted plaintiff obtained possession of the bonds from the trust company but averred that he got possession wrongfully and that the trust company participated in such wrongful delivery, put in issue the allegation that the trust company had refused to deliver the stock to plaintiff but averred that plaintiff was not entitled to receive said shares of stock and that defendant had so notified said trust company, admitted notifying the trust company not to pay over five thousand dollars of the bonus subscription in its hands and made affirmative allegations pertaining to said bonus subscription not material here, admitted the lease to the Scenic Company, said it was an honest and valid lease, that said company had control and possession of the railroad, averred that time was of the essence of plaintiff’s contract and that he had defaulted in that regard. The answer then pleaded the waiver of the mechanic’s lien by the contract provisions for, and acceptance of, other security, to-wit, the bonds, bonus and stock aforesaid; and, finally, by an array - of allegations relating to omissions and non-performance by plaintiff, the answer predicated damages in the amount of forty thousand dollars in failing to perform within the contract time, which damages it claimed from plaintiff alone, and one hundred and ten thousand dollars additional damages for non-performance and misperformance in other particulars and in wrongfully getting possession of said bonds. The latter item of damage defendant said accrued to it from the wrongful conduct of the trust company and plaintiff, mter sese, in delivery and accepting delivery of said bonds before the work was completed, in violation of the contract; and judgment was demanded against plaintiff and defendant trust company for that sum.

It seems that presently the mortgage securing the three hundred thousand dollar bond issue was released, payment being made through some refinancing scheme. Thereupon the trust company conceived it had no further interest in the suit and filed its formal disclaimer of interest. Thereupon the plaintiff dismissed his suit as against said trust company. This was in January, 1898, and the following record entry was made: C On motion of plaintiff by attorney it is ordered by the court that this cause be dismissed as to the defendant, the St. Louis Trust Company.”

We deem it of importance to observe right here that no exception was taken to the dismissal of the trust company, that the order of dismissal was never set aside, and that, though the dismissal was questioned and threshed over long afterwards at the trial of the lien case, yet, to all intents (for legal purposes), the trust company disappeared from that case as a party litigant in January, 1898. So that the lien case in its legal aspect stands precisely as if the trust company never had been a party.

Issue was joined by plaintiff’s filing replies to the separate answers of the Scenic Company and the railroad company, and that was the status of matters for over a year and during several terms of court.

In May, 1899, the lien case came on for trial to the court without a jury. By the trend of the evidence introduced, all of which is re-introduced in the case at bar, and of the instructions given and refused (likewise appearing in this record) it appears that the lien case was tried by plaintiff, speaking on broad lines, on the theory that he had fully performed his contract and was entitled to his full pay, that he had received in bonds two hundred and fifty thousand dollars and that by reason of the allegations in his petition and the pro • bative force of his proof sustaining the sainé he was entitled to a judgment for the balance of his pay withheld by the railroad company and which, he contended, was of the value of thirty thousand dollars, for which sum he was entitled to a lien and a foreclosure thereof; and was tried on the theory of defendants that plaintiff had not performed, that heavy damages resulted from his non-performance and misperformance, that he, at least, had waived his lien; and, further, that as to the stock item plaintiff was compelled to take that item of pay in stock, that if there was a wrongful conversion of the stock left in escrow with the trust company no lien could he adjudged against the railroad property as an incident to a judgment for such conversion.

So much for the theories of the litigants, nisi. But the trial judge also had theories and must be reckoned with on that score, since his judgment presumably was predicated on his own, rather than on litigants’ views. Anent his theory on the stock item, the first, glimpse we get of it was at the commencement of the trial. It seems that the trust company having been dismissed out of the case, the other defendants asked leave to amend their answers- so as to raise the question of defect of parties defendant. Leave to amend was refused, and in doing so, the court said: “I don’t see that it (the trust company) is actually a necessary party, either on plaintiff’s theory or on defendants’ theory of this case. I don’t see how cm order could issue against the St. Louis Trust Company to turn over the stock to the plaintiff.” Later the court put itself in bonds somewhat by instructions, and its theory on the stock item is further somewhat foreshadowed in their terms. Thus, it instructed (itself) that: “There is no evidence in this case showing the market value, as such, of the said capital stock stipulated in the contract to be delivered to said Baumhoff;” and, further, that, “If the plaintiff is entitled to recover the value of said capital stock, he is entitled to recover the highest value which it may have possessed at any time after he was entitled to recover the same and prior to the beginning of this suit, not exceeding the sum of twenty-five thousand -dollars;” and further, that: “No judgment establishing a contractor’s lien upon a railroad can be rendered unless a breach of contract is shown; even though the court find from the evidence that the St. Louis & Kirkwood Railroad Company converted to its own use any property deposited by it in escrow with the St. Louis Trust Company, no lien can be adjudged against any property of said Railroad Company as an incident to or in connection with a judgment against said Railroad Company for such conversion;” and another instruction in substance set forth that if the court found that plaintiff was entitled to recover in money, then the measure of damages should be adjusted with due reference to the fact that the consideration to be paid included á certain quantity of stocks, not money, and that plaintiff agreed to perform the contract for the actual value of the stocks at the time plaintiff was entitled to them plus the money payment out of the bonus subscriptions, and that aside from any damage by reason of non-payment of the cash from the bonus subscriptions, “the measure of damages, if any,” must be the value of any stocks wrongfully withheld from plaintiff at the time of such withholding, estimated in lawful money of the United States.

The lien case was held sub judiee until October, 1899, at which time the court made its finding and rendered judgment. It found against the counterclaims of both the railroad defendants; found full performance of the construction and equipment contract by plaintiff, and that he was entitled to his pay, etc. When it came to the stock item it "found as follows: “That he (plaintiff) was to receive for the work of constructing said road .... twenty-five thousand dollars in paid-up shares of the capital stock of the St. Louis & Kirkwood Railroad Company (here follows other elements of the construction contract); . . . that he is entitled to receive twenty-five thousand dollars ($25,-000) in paid-up shares of the capital stock of the St. Louis & Kirkwood Railroad Company; and the further sum of five thousand ($5,000) in cash, with interest on said cash sum from the — day of---, A. D. 189-, The court further finds .that the said shares of the capital stock of the St. Louis & Kirkwood Railroad Company are not shown by the evidence submitted to possess any pecuniary value.”

The judgment entered was that plaintiff recover of the defendant railroad company “the said sum of five thousand eight hundred ninety-seven dollars and fifty cents” — which sum is confessedly the cash item due from the bonus subscriptions plus the interest, thereon, and none other — and his costs against both of the remaining defendants, that plaintiff have a lien for said sum on the roadbed, etc., and that the same be foreclosed, etc.

From this judgment, the defendant railroad companies appealed to this court and it was in all things affirmed by Division 1 in December, 1902. [171 Mo. 120.] In the opinion by Brace, P. J., the judgment and finding of the St. Louis Circuit Court are set forth in haec verba, and it was said: “There is abundant evidence in the record to support the finding of the trial court.” It was further said: “The fact that he [plaintiff] may have had a right of action against the trust company therefor [that is, for the properties and money held in escrow by it] was no reason why he should have been forced to have abandoned his lien, and resort to such action. While he was entitled to but one satisfaction, he might have several remedies. ’ ’

So much for the lien case.

And when it is further stated that presently after being affirmed here, said money judgment was collected on fi. fa., that defendant in its answer herein pleaded the former adjudication as a bar by estoppel, that it substantially appears that plaintiff claimed possession of the stock certificate from the trust company, but it was not turned over to him because of the continued objection of defendant, and that thereupon the present suit for specific performance was instituted, we have before us all facts necessary.to understand the two propositions “a” and “b” relied upon to reverse the decree.

I. Where the pecuniary value of corporate stock is not provable (as here) and where in consequence one may not have adequate damages at law, he is not remediless against those who withhold such stock to which he is entitled, but a suit for specific performance of a contract to deliver lies. [Dennison v. Keasby, 200 Mo. 408, and cases cited; 26 Am. and Eng. Ency. Law (2 Ed.), 122.] It is thus seen that, on the plainest principles of equity, unless plaintiff’s right to the stock be otherwise barred, he is entitled to his remedy.

II. In considering whether plaintiff is estopped by the judgment in the lien case, it is well enough to note that plaintiff relies on that very judgment as determining his right to the stock. As we grasp it, the theory of plaintiff may be said to be that the present proceeding is in the nature of an equitable execution issued on that judgment — that is, an equitable proceeding to enforce a judgment at law already determining plaintiff’s right. That he sues in affirmance of the' judgment. On the other hand, the defendant contends, in effect, that plaintiff pursued his remedy in that case to its final determination, that he asked judgment for the value of the stock and got precisely what the proof showed him entitled to, to-wit, nothing. Therefore, defendant argues, that is the end of it and it may not be vexed twice — nothing he got then, and shall get the same now.

In view of these contrary views of the judgment in the lien case, it will be well enough presently to point out precisely what was determined in that, case, because the general principles controlling res judicata are not in doubt — the difficulty lies in the application of those principles to- particular eases. For instance, learned counsel for both parties accept and rely on the doctrine of Southern Pacific R. R. Co. v. United States, 168 U. S. 1. c. 48, et seq., in which Justice Harlan said: “The general principle announced in numerous cases is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even .if the second suit is for a different cause of action, the right, question or fact once so determined must, as between 'the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them.”

In the course of that opinion Justice Harlan reviews many cases, among others, Cromwell v. Sac County, 94 U. S. 351; and sums up the doctrine of the Cromwell case by stating it to' be this: “That a judgment upon the merits constitutes an absolute bar to a subsequent suit upon the same cause of action in respect to every matter offered and received in evidence, or which might have been offered to sustain or defeat the claim in controversy, while if the second action is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict was rendered, the injury [inquiry?] in such case being ‘as to the point or question actually litigated and determined in the original action, not what might have been litigated and determined. ’ ”

In Womach v. St. Joseph, 201 Mo. 1. c. 479, the following exposition of the law of res judicata was approvingly quoted from-the Duchess of'Kingston’s case (2 Smith’s Leading Cases [pt. 2, 8 Ed.], p. 734): “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the sameparties, coming incidentally in question in another court, for a different purpose. But neither the judgment of a concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question', though within their jurisdiction, nor of any matter incidently cognizable, nor of any matter to be inferred by argument from the judgment. ’ ’

In Clark v. Blair, 14 Fed. 812, McCrary, Circuit Judge, had under determination a case in point here, and held, quoting from the syllabi, that “the judgment in a former suit based upon the same facts, or between the same parties or their privies, but to enforce a different demand and obtain another form of relief, is conclusive only as to what was in fact litigated and decided in such suit.”

Attending now to what was determined in the lien case, it will be seen that plaintiff’s absolute right to the stock was determined by the judgment. So much stands out boldly and is clear. That judgment was in all things affirmed by this court, and, therefore, under the authorities quoted, all reagitation of that question is concluded as between plaintiff and defendant. What else, if anything, was determined by the lien judgment? When it is seen that the prime object of that suit was to establish and foreclose a lien for any money judgment recovered, that defendant asked and was allowed an instruction that no damage for conversion of the stock could1 be enforced by way of a lien, that the court found that no pecuniary value was established for the stock and followed that finding by assessing the lien amount at the .five thousand dollars and interest due plaintiff out of the bonus subscriptions —— we say all these things appearing, it sufficiently appears that the, force and effect of the determination in the lien ease was that plaintiff was entitled to two things: first, to the stock in kind; and second, to a money judgment on the item of bonus subscriptions. Having so found, judgment followed for the money, foreclosure of lien and award of execution. It must be remembered that the record before us shows also that the trial court was of the opinion it could not grant relief in kind in the lien case, it being a suit at law, hence could not order the stock turned over to plaintiff. This appears in its ruling refusing leave to amend the answers. These things sufficiently appearing, we are not inclined to hold that the judgment in the lien case, either in terms or intendment, undertook to assess plaintiff’s damage on the stock item or its value at nothing, and then so merge that impalpable or shadowy value into the concrete money judgment that he would stand precluded from thereafter claiming the stock itself. "Why, indeed, should the trial court have strained a point to preclude plaintiff’s subsequent claim of stock solemnly found to be Ms? To have done so would have been to toy with plaintiff’s rights and press to his lips, a judicial Tantalus’ cup. The court did not do so. The force "of its judgment is precisely the other way and should be construed to mean that, as to stock, the judgment contented itself with finding and pointing plaintiff to his title in, and right to possession of, the tMng itself — a right that could not be enforced by final process in the lien case but must be pursued elsewhere. Hence, plaintiff, having received satisfaction on the money judgment, is estopped to claim anytMng more on that score. But in so far as the judgment in the lien case determined his right to the stock, he has never received satisfaction to this day. His right being established, shall he have no remedy because the arm of a law court was too short to give him one? Under what more favorable auspices could equity step in with its corrective power?

It seems to us that any other conclusion would be to dig a pit and spread a net to ensnare the feet of justice; because, aside from money value, the stock had sentimental values, and conferred powers and privileges upon its owner — for example, voting power, the right as a share owner to a voice and finger in the corporate management — all of which are privileges given and protected by law and which can oMy be exercised by the transfer of the stock to Mm. Having these property rights, it would seem to be paltering with the situation to deny a remedy, unless we were constrained to take that course by some inflexible principle of law. Ubi jus, ibi remedium, as said by counsel.

If this were a suit for the value of the stock or one based on some alleged conversion by defendant prior to the lien case, the doctrine of res judicata might be held to apply because it could with propriety be urged that the court had in judgment the question of value in the lien case. But, being in effect a suit to complete and round out a right established by the former suit, the latter ought to be held good as far as it went.

In Nickerson v. Stage Co., 10 Cal. 520, Terry, C. J., quoted with approval the following passage from Swift’s Evidence: “Where the cause and oVject of both actions are the same, the judgment in the prior bars the subsequent suit. When the cause or object of the actions are different, though the point in dispute is the same in both, the prior judgment is no bar to the subsequent action, but the verdict is matter of evidence to prove the point.”

In Perry v. Dickerson, 85 N. Y. 345, it was held, quoting from the syllabus, that: “To sustain a plea of a former judgment in bar it must appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second suit was in issue in the first action and was decided adversely to plaintiff. The bare fact that two causes of action spring out of the same contract does not ipso facto render a judgment on one bar to a suit on the other.”

Litigation being only “a means of administering uniform justice,” it has been held that where plaintiff’s ultimate right to sue was not determined in the first proceeding, or where the determination proceeded upon some technical objection not affecting it, the first judgment will constitute no bar to the second. suit. [Carmony v. Hoover, 5 Pa. St. 305.] It was said by McIver, J., in Sease v. Dobson (S. C.), 13 S. E. 530, that: “It is true that parties may, and sometimes do, fail to obtain that justice which the real facts entitle them to, by the manner in which their cases are presented to the court; but such an unhappy result ought always to be avoided, if it is practicable to do so without infringing settled rules of law which it is essential to the welfare of the commonwealth to preserve in their fullest integrity, for, being established for the. guidance and control of the whole community, they should never be distorted or strained to suit the fancied justice of a particular case.”

Conceding the foregoing dictum sound, nevertheless, we find no inflexible principle of law impinged upon in granting relief to plaintiff in this case. In getting at ultimate right it has been held that a suit for specific performance of a contract, dismissed on hearing on the merits, is not a bar to an action at law between the same parties to -rescind the contract and recover back'money paid under it. [Ballou v. Billings, 136 Mass. 307.] The judge writing that case, Oliver Wendell Holmes, later and now a member of the U. S: Supreme Court, spoke for that court in an opinion in Northern Assurance Co. v. Grand View Building Association, 203 U. S. 106, holding that a suit at law to recover on an insurance policy, in which plaintiff was denied recovery as the policy stood, is. not an adjudication that the contract of insurance cannot be reformed in an after suit in equity. The first suit had proceeded on the theory that a recovery could be had without reformation; and in disposing of the question of election, Justice Holmes, epigrammatically, said: “Its [plaintiff’s] choice of law was not an election but an hypothesis.” So, too, in Garland v. Smith, 164 Mo. 1. c. 22, it was said: “Where the purpose and object of the former action are the same with the later action, it is not to be questioned that the judgment concludes everything which might have been brought forward, although not in fact pleaded or in evidence, but where the subsequent action is upon a different claim, the former judgment only bars those things which were in issue or included, in the issue in the former action or suit, nor will the judgment bar another cause which might have been joined with the former cause of action but was not, and if different proofs are required to sustain two actions, the judgment in one is no bar to the other.” [Citing Cromwell v. Sac County, supra.]

Many other .cases might be cited, by parity of reasoning sustaining the decree in this case against the' attach delivered by defendant in its assignment of error “a,” but when it is further said that the cause of action and the objects of the two suits are dissimilar; that, the trust company having been dismissed out of the former suit and included in this, the parties are not the same, enough appears to give the grounds of our conclusion, which is, that the court committed no error in holding that the lien case was not res judicata.

III. But it is contended by defendant that, laying the lien case and specific performance case side by side, it is apparent plaintiff has split up an entire cause of action, and, therefore, is estopped to maintain his last suit. It is elementary law that an indivisible, hence, single and entire, cause of action may hot be split at the whim of plaintiff into a series of suits, to 'the harassment of a defendant. The law abhors a multiplicity of suits; it grants its benediction to arbitration, to compromise, to accord and settlement. It concerns the law that there be an end to lawsuits. Plaintiff may have but one action for one entire wrong, and but one action for one entire contractual right; but the rule against the splitting of causes of action does not obtain where there is one contract but the performance is several. Here the performance is several, though the two causes of action arose on the same contract. This is a suit against the trust company to deliver the physical custody of stock over to plaintiff and to compel defendant railroad company to transfer that stock on its books in accordance with its by-laws and issue a new certificate. Performance of the contract in kind was contemplated by its terms. Failure to deliver the stock and perform in that behalf created a single, entire canse of action for specific performance. It matters not that the contract was violated in the particular that plaintiff was not paid $5,000 out of the bonus subscriptions whereby plaintiff had another entire and indivisible cause of action rightfully culminating in a money judgment and lien. One cause is in equity, the other at law, though both spring from one contract. There is no merit in this contention.

The decree is sustained by the reasoning of Christopher & Simpson, etc., Foundry Co. v. Kelly, 91 Mo. App. 93; Perry v. Dickerson, 85 N. Y. supra; Boyce v. Christy, 47 Mo. 70; and other cases cited under point 2 of plaintiff’s brief.

IV. Finally: it is said, arguendo, in the brief of plaintiff’s learned counsel, as follows: “The substantive law of the case is found in the Decalogue, Exodus 20: 15” — to-wit: Thou shalt not steal. Replying to that contention it is argued, contra, in the brief of defendant’s learned counsel that the foregoing interdiction is not in point here, but that an old case decided by a pseudo-judge, one Portia, reported in Merchant' of Venice, Act IV, Scene I, is on all-fours (quatuor pedibus) — a case known to the profession as the Pound-of-Flesh-and-Drop-of-Blood Case. These ingenious and rather tense contentions pro and con have been looked into for substance and are disallowed; because on the one side there is absent certain venerable elements essential to constitute larceny, known to scholars in jurisprudence, as the asportavit, the animus furandi and the doli capax. Did the defendant have the stock in possession? No — ergo, there is no asportavit. What of the cmimus furcmdi? Is there any? No. Is a corporation in law doli capax, so that it may be guilty of larceny? Doubted, and the question reserved. So, too, the doctrine of Portia’s case seems to be afield; for in the opinion handed down as reported by Mr. Shakespeare it was held that said pound could only pass to the plaintiff on a condition subsequent, vis.: his “lands and goods are by the laws of Venice confiscated to the State of Venice” if (much virtue in that “if ”) in the cutting thereof by plaintiff “one drop of Christian blood” was shed. Accordingly, observe that plaintiff in that case entered a remittitur for the pound, in fact suffered a nonsuit, rather than face the loss of all his assets, real, personal and mixed; while here defendant concedes plaintiff the pound itself, and says he has it. Is Portia’s law, law? We may answer that question in the phrase of the same learned reporter in another case (see Hamlet’s case) — to-wit: “Ay, marry, is’t; crowner’s quest law.” Thus it falls out that the last questions raised may be put aside as mere flotsam and jetsam.

The decree was right and should be affirmed. Let it be so ordered.

All concur.