text:
    BERTHA VON TREBRA v. LACLEDE GASLIGHT COMPANY, Appellant.
    Division One,
    February 26, 1908.
    1. NEGLIGENCE: Demurrer: Prima-Facie Case: Electric Wire. Where there was evidence in the case that the lineman was rightfully on the pole above the defendant’s electric wire, that he came in contact with it, that when he did so a flash of light was seen at the point of contact, that he was seen at the same instant to fall head-foremost from the pole to the ground, his widow made out a prima-facie case, and a demurrer t.o the evidence was properly overruled.
    2. -: -: -: -: Insulation. It is not necessary for plaintiff to prove, as a part of his prima-facie case, that the insulation was off of the wire; if the lineman’s injuries or death was caused by coming in contact with the wire, it is conclusively presumed that the insulation was defective.
    3. -■: Electric Wire: Allegation and Proof: Variance: No Objection: Entire Failure. Where the petition charged that “defendant had allowed its wires to become defective in insulation and in a dangerous condition,” testimony to the effect that “circular loom” insulation was better and safer than that used, is not admissible; but if defendant does not object to the testimony, it waives the question of pleading, and its assignment that there was a variance between the allegation and proof will not avail; for, there is not an entire failure of proof, since the gravamen of the charge was the “dangerous condition” of the wire, and the defective insulation, which is charged, and presumed from the flash of light and the lineman’s instant fall on coming in contact with the wire, may have been only one of many ways in which defendant may have been negligent in permitting the wire to become dangerous..
    4. -: Contributory. The burden is on defendant to prove contributory negligence, and while there may be such evidence as would have authorized the jury to find that the lineman was guilty of such contributory negligence as caused his death, yet if they did not do so, and the issue was properly submitted to them, the appellate court will not interfere with their verdict.
    Appeal from St. Louis City Circuit Court. — Hon. Daniel D. Fisher, Judge.
    Affirmed.

      I. H. Lionberger for appellant.
    (1) The specific and only act of negligence charged in the petition is-that “defendant had allowed its wires to become defective in insulation and in a dangerous condition.” No proof in support of this allegation was offered, and none appears in the record. The uncontradicted testimony of all the witnesses, both for plaintiff and defendant, establishes the fact that the insulation was of the sort usually used and required by law, and in good condition at the time of the accident. Negligence of another sort, to-wit, in not providing a new and different kind of insulation, which was not required by the ordinance, is not provable under such charge. McCarthy v. Rood Hotel, 144 Mo. 397; McNamanee v. Railroad, 135 Mo. 440'; Schneider v. Railroad, 75 Mo. 295; Waldhier v. Railroad, 71 Mo. 516. (2) Mischief, which a reasonable person could not have anticipated, cannot be taken into account as a basis on which to predicate a wrong. By a reasonable estimate of probabilities it could not have been anticipated that a situation which had proved safe for all sorts of linemen ascending and descending the pole for a period of fourteen years, was dangerous to an ordinarily careful man. Fusch v. St. Louis, 167 Mo. 646; American Brewing Assn. v. Talbot,. 141 Mo. 674. (3) •Defendant was in no sense an insurer of the safety of the plaintiff’s husband. It was bound to use reasonable care, all the facts of the situation considered. The wires were not on a roof, nor accessible to the public in general. They were strung on a pole elevated'a considerable distance above the highway and no one had the right to go near them but an experienced lineman familiar with wires and their dangers. The wires were plainly visible, and strung on the proper or back side of the pole. They were insulated in the customary and required manner. Circular loom would have been more dangerous in wet weather, and after storms wires usually require to be repaired. They had been passed in safety thousands of times by all sorts of men, and no accident had ever occurred. They had been passed in safety by Yon Trebra himself. The situation was safe to one using ordinary care, and it was not negligence not to anticipate such an accident as occurred. Fusch v. St. Louis, 167 Mo. 646; Frauenthal v. Gas Co., 67 Mo. App. 1. (4) The evidence does not prove, nor tend to prove, that plaintiff’s husband was killed by the wires of defendant. He might have met his death from either of several causes, all of which existed and are established by the evidence. A conjecture that defendant’s wires might have caused the death is not sufficient to fix responsibility upon defendant. Trigg v. Lumber Co., 187 Mo. 227; Hewett v. Steele, 136 Mo. 335. (5) Assuming, however, that the wires of defendant were dangerous and caused the death of plaintiff’s husband, yet plaintiff’s own testimony shows that he was guilty of contributory negligence. Yon Trebra was a lineman of long experience in this sort of work. He knew all the wires, the currents carried and the dangers of contact. He had been cautioned by his own foreman. The wires of defendant were in plain view. He had passed them in ascending the pole. He saw the insulation used. His clothes were saturated with perspiration. He started down the wrong side of the pole, knowing the presence of the wires. He might have gone the other way. To choose a dangerous and unnecessary way to descend the pole while his clothes were wet and the dangers of contact were excessive, was to neglect a precaution which ought to have been taken. Under such circumstances, he was the author of his own wrong. Davies v. Mann, 10 M. & W. 548; Roberts v. Tel. Co., 166 Mo. 378; Phelps v. Salisbury, 161 Mo. 1; Howelson v. Railroad, 157 Mo. 225; Watson v. Railroad, 133 Mo. 250'; Craig v. Sedalia, 63 Mo. 430; Ray v. Poplar Bluff, 70 Mo. 252.

      Chas. L. $ Phillips Moss for respondent.
    (1) (a) Under the allegation of the petition that by reason of the negligence of defendant the wires ‘ ‘ were in a dangerous condition, ’ ’ any evidence tending to show that defendant had not discharged its full duty in rendering them safe is admissible. Its duty under the circumstances of this case was to use every precaution which was reasonably accessible to insulate its wires at the point of contact or injury, and to use the utmost care to keep' them so. Oeisman v. Elec. C'o., 173 Mo. 654; Winkelman v. Kansas City E. L. Co., 110' Mo. App. 184; Ryan v. Railroad, 190 Mo. 621. (b) “An objection that the evidence is not within the issues must be made at the time the evidence is offered or it is waived and the appellant can neither complain of instructions based upon such evidence nor ask the upper Gourt to pass upon it on appeal.” Stuart v. Goodrich, 9 Mo. App. 125; Chouquette v. Railroad, 152 Mo. 257; Harwood v. Tons, 130 Mo. 225'; Miller v. Railroad, 105 Mo. 421; Lancaster v. Ins. Co., 62 Mo. 121; Sexton v. Allen, 49 Mo. 417; Lox v. Railroad, 57 Mo. App. 350; Bank v. McMenamy, 35 Mo. App. 203. (c) Unless there is a failure of proof in a case “in its entire scope and meaning,” there is no failure of proof, but only a variance. In the case of a variance, which may be cured by amendment, defendant’s remedy is by affidavit proving to the satisfaction of the court that he was misled as provided for by the statute, Revised Statutes 1899, section 655. In case defendant fails to pursue this remedy the point is waived and objection to the evidence claimed to be variant can not be urged by him on appeal. To allow, him to do so would deprive the plaintiff of his right to amend at the trial. Chouquette v. Railroad, 152 Mo. 257; Miller v. Railroad, 105 Mo. 144; Ridenhour v. Railroad, 102 Mo. 270; Meyers v. Chambers, 68 Mo. 626; Wills v. Sharp-, 57 Mo. 56; Turner v. Railroad, 51 Mo. 509'; Litton v. Railroad, 111 Mo. App. 144; Chartrand v. Railroad, 57 Mo. App. 425; Brown v. Railroad, 31 Mo. App. 661. (d) The allegations of the petition that the wires “had been allowed by defendant to become defective in insulation, and were in a dangerous condition,” were amply proven under the doctrine of res ipsa loquitur by the evidence tending to prove that Von Trebra could have been killed by no other agency than a shock from defendant’s wires. Geisman v. Elec. C'o., 173 Mo. 654; Winkleman v. Kansas City E. L. Co., 11(> Mo. App. 184; Ryan v. Railroad, 190' Mo. 621. (2) “It is the duty of an electric lighting company to use every accessible precaution to insulate its wires at all points where people have the right to go and to use the utmost care to keep them so insulated.” Geisman v. Elec. Co., 173 Mo. 654; McLaughlin v. Elec. Co., 109 Ky. 173, 34 L. B. A. 812; Overall v. Elec. Co. (Ky.), 47 S. W. 492; Clements v. Elec. Co., 44 La. Ann. 692, 16 L. R. A. 43, and cases cited by the Geisman case supra; Winkleman v. K. C. Elec. Co., 85 S. W. 99, HO- Mo. App. 184; Ryan v. Railroad, 190 Mo. 621.
   WOODSON, J.

This is an action which was instituted in the circuit court of the city of St. Louis, by the plaintiff, who is the widow of Ernest C. Von Trebra, against the defendant, to recover the sum of five thousand dollars damages for the alleged negligent killing of her husband in that city, on August 20, 1904.

The petition, omitting formal parts, is as follows:

“Now comes the plaintiff, by her attorneys, and for her cause of action herein avers:
“That the defendant is a corporation duly organized under the laws of the State of Missouri, and engaged in business in the city of St. Louis, and was at the time hereinafter mentioned engaged in manufacturing and furnishing electricity for light and power to its customers and consumers in said city. That the defendant owned, maintained and operated in said city for said purposes, at said times, a system of wires which were strung on poles erected in the streets, by which means the electric current was carried over, upon and through the streets of said city, from its plant to its various consumers; and had and maintained certain such wires on a pole belonging to the Kinloch Telephone Company, which stood on the south-east corner of Broadway and Dock streets in said city at the time hereinafter stated, and which said wires carried a high and dangerous voltage of electricity.
“That plaintiff was the lawful wife of Elrnest C. Von Trebra hereinafter named, until his decease, as hereinafter shown, and is now his widow. •
“That on the 20th day of August, 1904, the said Ernest C. Von Trebra, husband of plaintiff, then and there lawfully and of right, being engaged in the line of his duty as an employee of the Union Electric Light and Power Company, on and upon the said telephone pole on the southeast corner of Broadway and Dock streets aforesaid, came in contact with the said wires of defendant thereon, which had been allowed by defendant to become defective in insulation, and were in a dangerous condition, and was thereby shocked, burned, thrown to the ground and immediately killed.
“That by reason of the neglect of defendant, its servants and employees the said wires of defendant which thus caused the death of plaintiff’s husband had been allowed to become defective in insulation and dangerous- to human life; all of which was well known to defendant, or in the exercise of due and proper attention and diligence in the care thereof should have been so known.
“That said deceased so came to his death because of the negligence and misconduct of defendant, and without his own fault or negligence, and because of said wrongful act, negligence and default of defendant the plaintiff has been damaged by the death of her said husband in the sum of five thousand dollars.”

The answer consists of a general denial, and a plea of contributory negligence.

A trial was had before the court and jury; and the plaintiff introduced evidence tending to prove that at the time of the accident she was the wife of the deceased, and that he was a lineman and in the employ of the Union Electric Light and Power Company, and was engaged in the line of his duty. That a pole had been erected by the Kinloch Telephone Company at the corner of Broadway and Dock streets to support its wires used in the distribution of electric currents furnished to its customers. The defendant also used that pole for similar purposes. Four of its wires running north and south were attached to a cross-arm, ten feet long, fastened to that pole, two of which carried currents of electricity from the generating plant of the defendant, and the other two carried the return currents. That those currents of electricity were very strong, of high voltage and deadly, when man or beast came in contact with them. Those wires were strung to the two ends of the cross-arm. Above this arm of the defendant a new red arm had been fastened, which belonged to the Union Electric Light and Power Company, the company in whose employ was the deceased. This arm was about eighteen inches above the Laclede arm, and carried the wires of the Union Company, and attached in the same manner as were those of the Laclede wires. There were also attached to the same pole, but on separate and higher arms, wires of the Kinloch Telephone Company. These arms were five or six in number. All arms of all the companies were attached to the north side of the pole, which was called the front side. On the other side, called the back, connections were run by the defendant company to adjoining property for the purpose of furnishing electricity for light, heat and power. These connections were made in the following manner: the wire carrying the current from the generating plant was cut, a new wire was attached, led across the back, that is, the south side, of the pole, and connected with the lamp and machinery to be furnished; and these lamps and machinery were then connected with the return wire, led across the same side of the pole and connected with the wire carrying the current of electricity back to the generating plant.

At the time of the injury, the wires of the defendant company carried about two thousand volts, and those of the Union Company carried about five hundred volts of current. Yon Trebra knew those facts. Either current was sufficient to knock a man from the pole, if a good contact was had, and both would kill under favorable circumstances.

The defendant’s wires were on the lowest cross-arm, and they were strung near the ends thereof for the purpose of leaving a space between them large enough to permit a person to pass engaged in the performance of his duties. In mounting a pole the linemen could ascend or descend on either side of the pole, but usually they did so on the opposite side to the lean. The pole in question leaned slightly to the north.

Without objection, plaintiff introduced evidence tending to prove that the kind of insulation used on defendant’s wires, at the time and place of the injury, was not reasonably safe for a place of that character; and that “circular loom,” a better and safer insulation, could and might have been used by the defendant.

The deceased at the time of his injury had been repairing some of the wires of. the Union Company, and he had, in order to reach those wires, to pass the wires of the defendant company on his way up> the pole. He was familiar with their location, the current they carried, and the danger incident to coming in contact'with them.

The day of the accident was extremely hot, and deceased began work at eight o’clock in the morning, and was busily engaged up to 3:30, the time the accident occurred. The job' was an emergency job', and all linemen were pushed. He mounted the pole in safety, and stood on the arm of the defendant, above its wires, in order to connect the wires of the Union Company on a superior arm. To do' this he was requried to lean out from the pole about three feet, and reach the wires stretched at the end of the arm, of which there were three. He was engaged just prior to the accident in taking off the insulation from these three wires, cutting them, twisting the ends together, soldering them, and then taping them up.

The testimony of Walker, an eye-witness, is to the effect that he saw Von Trebra complete his work, gather up his tools, start down the pole, make “two or three steps down the pole from the arm he was working on,” and reach a point directly over defendant’s wires. “He never hit no wires when he fell off the pole, only the wires of the first arm,” the defendant’s wires, the wires on “the first one from the ground,” when he, the witness, saw a flash and Von Trebra fell to the ground. ■

Both eye-witnesses, Walker and Miller, are positive he was coming down the pole. The defendant’s wires were the only wires below the point at which Von Trebra had been working.

Miller testified that -he also had been watching Von Trebra, and saw the fall. He testified that Von Trebra started from the second lowest cross-arm, that is, the one immediately above that of the defendant, took a step or two, and fell southward. This witness, however, saw no flash.

It appeared by the evidence of other witnesses that Von Trebra had been burned in two places, about eight inches apart, under the arm pit and over the heart. He was not dead, however, when picked up. One witness testified that his skull was fractured by contact with the cross-arms on the side-walk and that he was unconscious. An undertaker, however, testified that his skull was not fractured, but that his hair was burned. One of the witnesses who testified that the burns on Von Trebra’s body were about eight or nine inches apart, testified also that the wires of defendant, which presumably caused the injury, are about ten inches apart. The wires which in fact eleven and one-half inches apart. By the injuries thus received Von Trebra was rendered unconscious and died a few hours thereafter, without regaining consciousness.

The defendant’s evidence tended to prove that the wires of the defendant were insulated with the ordinary and required insulation used for over-head wires, and that the insulation was in good condition on the day of the accident. But the witness Ouane, who testified to the condition of the insulation, also testified that he did not go to the top of the pole, that he looked at the wires only from the ground, and that if there had been any defects on the top of the wire he could not have seen it from where he stood. He also said that he did not “notice them in particular,” and that “they seemed to be all right.”

Defendant’s evidence also tended to show contributory negligence on tbe part of tbe deceased, which contributed to his injury.

Defendant also introduced some expert evidence which tended to show that deceased could not have received his injuries in the manner claimed by plaintiff without having produced an effect upon an indicator maintained at defendant’s plant. It also showed that no such effect was registered on the indicator. The plaintiff introduced other expert evidence in rebuttal tending to prove that the injury could have been so produced, and at the same time not affect the indicator.

The defendant demurred to plaintiff’s evidence, which was, by the court, overruled, and it duly excepted. The court then instructed the jury, at the request of counsel for plaintiff and defendant, presenting their respective theories of the case to the jury. The jury found for the plaintiff, and assessed her damage at the sum of $5,000 ; and defendant has duly appealed the cause to this court.

I. Appellant’s first assignment of error is lodged against the action of the trial court in refusing to give its instruction in the nature of a demurrer to the evidence.

It is elementary in this State that a demurrer admits every fact to be true which the evidence in the cause tends to prove, whether by direct testimony or by reasonable deductions to be drawn therefrom,. According to this rule, the court properly refused that instruction, for the reason that there was evidence in the case which tended to prove that Von Trebra came in contact with the wires of defendant, and that when he did so a flash of light was seen at the point of contact, and that he was, at the same instant, seen to fall head-foremost from the pole to the ground, in an unconscious condition, thereby receiving severe injuries, and that he died therefrom shortly thereafter. This evidence made ont a prima-facie case on the part of the plaintiff, which entitled her to have the issues of fact submitted to the jury.

.The settled law of this State regarding this class of injuries is, that it is not necessary for the plaintiff to prove, in order to' recover, that the insulation was off of the wire, at the point of contact. All the law requires is that it be shown that the defective insulation caused the injury, without fault on his part, and that he was rightfully .where he was. It is equally well-settled law of this State, that when injury or death is caused by coming in contact with such a wire, it is conclusively presumed that the insulation of the wire was defective. This rule was stated in the case of Geismann v. Missouri-Edison Electric Co., 173 Mo. l. c. 678, by Burgess, J., in the following language: “It follows from these authorities that it was defendant’s duty, in the first place, to use every protection which was reasonably accessible to insulate its wires at the point of contact or injury in this case, and to use the utmost care to beep them so, and the mere fact of the death of Geismann is conclusive proof of the defect of the insulation and negligence of the defendant, and as to whether he was guilty of contributory negligence or not was a question for the jury.” The opinion in that case, after a most careful and exhaustive consideration of the legal propositions involved therein, and in which all of the authorities of this country bearing upon the questions were carefully reviewed, enunciated the law as above stated.

The case of Ryan v. Railroad, 190 Mo. 621, announces the same rule, and it is an equally well-considered case, and in which Gantt, J., cited the Geis-mann case, and, approvingly, quoted extensively therefrom. The same rule thus announced was followed in the case of Young v. Waters-Pieree Oil Co., 185 Mo. 634.

We are, therefore, of the opinion that the court committed no error in refusing to give defendant’s infraction in the nature of a demurrer to the evidence.

II. It is next insisted by appellant that there was a total variance between the allegations of the petition and the evidence introduced. The negligence of appellant as charged in the petition is, that “defendant had allowed its wires to become defective in insulation and in a dangerous condition.”

The appellant’s first position is, that all the evidence which was admissible under that charge shows the wires were insulated with the ordinary and required insulation used for over-head wires; and that the evidence failed to show the insulation was defective in 'any manner; and, second, that negligence of another character, to-wit, in not providing a different kind of insulation from that used, was not provable under such charge.

We have disposed of the first contention in the first paragraph of this opinion, and we need not give it further consideration.

But we will consider the second.

It is true, the negligence complained of in the petition was that the defendant allowed its wires to become defective in insulation and in a dangerous condition. We are clearly of the opinion that the testimony of witnesses to the effect that “circular loom” insulation was better and safer than that used by appellant was not admissible under that allegation of the petition, had objections been made thereto. The record, however, fails to disclose any objection to the introduction of that evidence; and, consequently, appellant is in no position to insist that the admission of that evidence was error. Had timely objections been made, a wholly different condition would have confronted the trial court. Under the allegations of the petition the court should have sustained the objection, in which event the plaintiff would have been compelled to take a non-suit, or she should have obtained leave to amend the petition in that regard, and proceed with the trial; but by failing to enter a timely objection to the introduction of that evidence, appellant waived the question of pleading, and will not afterwards be heard to complain of such variance. [Chouquette v. Railroad, 152 Mo. 257; Stewart v. Goodrich, 9 Mo. App. 125.]

It may be said that the rule just stated does not apply where there, is a failure of proof of the cause of action charged in its entire scope and meaning; but it is sufficient to here state that there is not an entire failure of proof of the cause stated, because the real gravamen of the allegation is the “dangerous condition’-’ of wires, and the defective insulation was but one of the many ways by which the appellant might have been negligent in permitting them to become dangerous to those employed about them. The plaintiff might have alleged in the first instance that their dangerous condition was caused by improper insulation, or that the insulation had become defective, or she might have charged both; and, if so, there was not a complete failure of proof, but only a variance which was waived by not making timely objection. [Ridenhour v. Railroad, 102 Mo. 270; Meyer v. Chambers, 68 Mo. 626; Wells v. Sharp, 57 Mo. 56; Turner v. Railroad, 51 Mo. l. c. 509; Chouquette v. Railroad, supra.]

For the reasons thus stated, we must decide this contention also against the appellant.

III. It is next contended by appellant that there is no evidence which tends to prove that Yon Trebra was killed by its wires.

After a careful reading of all the evidence in the ease, we have reached the conclusion that there is ample evidence in the record which tends to show that appellant’s wires did canse the death.; and, in fact, if it were within the province of this court to pass upon the facts, we would have no hesitancy in holding that the defendant’s wires were responsible for the death.

IY. It is finally contended that the plaintiff was not entitled to recover for the reason that her husband was guilty of negligence which contributed directly to his injury and death.

If that contention is true in point of fact, then, unquestionably, she should not be permitted to recover, and the judgment should be reversed. Contributory negligence is a defense which must not only be pleaded, but the burden of proving such negligence rests tip on the defendant. While it is true there is evidence in this record which might have warranted the jury in finding he was guilty of contributory negligence, yet they did not do so. That was an issue which could be only determined by the jury. It was properly submitted to them, and they found against appellant^ which is conclusive upon this court.

We are, therefore, of the opinion that the judgment is for the right party, and should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: VALLIANT, P. J.

license: Public Domain

text:
    A. MOORE BERRY, Receiver, v. HORACE E. ROOD et al., Appellants.
    Division One,
    February 26, 1908.
    1. APPEAL: Equity Case: All Evidence. In an equity case it devolves upon appellant to incorporate in his bill of exceptions all the evidence that was heard at the trial; but that rule is complied with by calls in the bill for the evidence alleged to be omitted. For instance, where evidence taken before a referee was returned into court with the report, and the bill calls for the report and evidence by the words, “Here the clerk will copy said referee’s report and evidence,” the judgment will not be affirmed because that evidence and report were not copied into the bill.

      2. -: -: -: Abstract. And where appellant’s abstract does not contain that report and evidence, the judgment will not be affirmed because of a defective abstract, because the statutes and rules of court require respondent, when he is not satisfied with appellant’s, abstract, to make one of his own, and then the matter is adjusted by a taxation of costs.
    3. REFERENCE: Finding of Fact: No Exception. Where the referee makes a finding of fact, and no exception is filed to his report in the trial court as to that finding, it is not for review in the appellate court — on the theory that the trial court is not chargeable with an error it was not asked to correct.
    4. -: -: —--: Appeal: New Trial: Res Adjudicata. And where no exceptions were taken to the referee’s finding of facts, but only to his conclusions of law, and these exceptions the trial court approved, and on appeal by plaintiff the trial court’s judgment thereon is disapproved and the cause remanded “with directions to proceed to adjust the rights of the parties in accordance with the law as herein expressed,” the defendants were not entitled to a trial de novo. Having submitted the case for judgment on the facts found, without exception thereto, they are bound thereto and the facts as to them are res adjudicata.

    5. SUBSTITUTED PARTIES: Assignee: Re-assignment: foo Order of Court. In a suit pending in which McMaster, as assignee of a jewelry company, was plaintiff, and a certain onyx company, a corporation, was defendant, Berry was appointed receiver of the onyx company and directed to wind up its affairs and to bring suit against the stockholders to collect its unpaid capital, for the benefit of its creditors. 'After McMaster began suit he made a re-assignment back to the jewelry company, and the record does not show that the jewelry company by order of court was substituted as plaintiff in the cause, but it does show that after the re-assignment the jewelry company came into court and filed an amended petition reciting the fact of re-assignment and assumed the position of plaintiff and was so recognized by the court. Held, that there should have been an order of court entered of record authorizing such substitution, but the omission was not fatal to the further proceedings, and, besides, if there was any merit in the cause it should have been made in the trial court on the first trial and brought to the notice of the Supreme Court on the former appeal.
    6. COSTS. Costs in a lawsuit do not mean attorney’s fees.
    7. CORPORATION: Unpaid Stock: Assessment for Receiver’s and Attorney’s Fees. Where a receiver has been appointed, the amount of his compensation and the fees to be allowed to his attorneys should be determined in that suit; and until that is done, it cannot be determined in a suit wherein the receiver has been directed to bring suit against the stockholders of the insolvent corporation to collect from them, for the benefit of its creditors, the unpaid amount of the stock issued as paid-up, that the stockholders are not liable for receiver’s and attorney’s fees.
    Appeal from St. Louis City Circuit Court. — Now. O’Neill Ryan, Judge.
    Reversed and remanded.

      Dawson S Garvin for appellants.
    (1) "When this case was here on the former appeal it was reversed and remanded for a new trial, and not with directions to enter any particular judgment. State ex rel. v. St. Louis Circuit Court, 41 Mo. 574; State v. Newkirk, 49 MO'. 474; Updike v. Park, 11 111. App. 357; City v. Bogardus, 188 111. 74; Duns-more v. Rouse, 211 111. 317; Hawkins v. Railroad, 99 Fed. 322.- (2) And the action of the circuit court in sustaining plaintiff’s motion for judgment and entering a decree thereon against defendants was erroneous. Patterson v. Patterson, 200- Mo. 335; State ex rel. v. Jarrott, 183 Mo. 204; Smith v. Paris, 70 Mr. 621; Lins v. Lenhart, 127 Mo. 280’; Dalrymple v. Craig, 149 Mo. 357; Courtney v. Blackwell, 150 Mo. 267; Hoeller v. Haffner, 155' Mo. 597; State ex rel. v. St. Louis Circuit Court, 41 Mo. 574. (3) Defendants in this case are not liable for allowances for the compensation of receiver and his counsel. Such allowances being costs of administration of the estate of the Ozark Onyx Company must be made, if they are ever made, in the case of McMaster, assignee of the Providence Jewelry Company v. Ozark Onyx Company, wherein the receiver was appointed, and he paid out of such assets as he may have in his hands, or they may he taxed as costs in that case. The effect of the decree .was to require defendants to pay plaintiff’s attorney’s fees in this case, which is contrary to the law of Missouri. Scovell v. Thyer, 105 U. S. 143; Hill v. Atoka Mining Co., 124 Mo. 166; Richmond v. Irons, 121 H. S. 66; St. Louis v. Meintz, 107 Mo. 615; Albers v. Merchants Exchange, 138 Mo. 160.

      Lee W. Grant, P. R. Flitcraft and W. B. Homer for respondent.
    (1) “All the questions presented by the record on this appeal up to the time of the decision of the court upon the former appeal, or which might have been put in issue, were passed on in the opinion then delivered, and have become res adjudícala. On the former appeal the judgment was reversed and the case remanded with specific directions, and under such circumstances the mandate must be strictly pursued, all matters included being res adjudícala and cannot be reopened.” Bank v. Taylor, 62 Mo. 338; Bridge Co. v. Stone, 194 Mo. 184; Hunt v. Railroad, 184 H. S. 91; Chouteau v. Allen, 74 Mo. 56; Shroyer v. Nickell, 67 Mo. 589; Hurck v. Ersldne, 50 Mo. 116 ; Stump v. Hornback, 10-9 Mo. 277; Treadway v. Johnson, 39 Mo'. App. 136. (2) When a cause is reversed and remanded with directions, the trial court must proceed to enter the judgment indicated by the appellate court; nor is it necessary for the appellate court to give explicit directions regarding the judgment, but the trial court must examine the mandate and the opinion and the issues made by the pleadings, which have been adjudicated. Lackland v. Smith, 5 Mo. App. 153, 579, 75 Mo. 307; State ex rel. v. Edwards, 144 Mo. 467; Fanning v. Doan, 146 Mo. 98; Gamble v. Gibson, 10 Mo. App1. 327; Supervisor v. Kennieott, 94 U. S. 498; Riley v. Sherwood, 155 Mo. 37; State ex rel. v. Given, 75 Mo. 516; Pickle Stone Co. v. Wall, 108 Mo. App. 495; Barkhoefer v. Barkhoefer, 93 Mo. App. 373. (3) A receiver, who is an officer of the court, is entitled to such allowances as ’ the court may make out of the assets of the estate and unpaid subscriptions of the insolvent corporation are assets. Greeley v. Bank, 103 Mo. 212; Banking Co. v. Mfg. Co., 168 Mo. 646. A receiver appointed by the Comptroller of the Currency, under the National Banking Act, is entitled to recover from the stockholders, oh account of their subscriptions to the capital stock of the corporation, not only enough to pay the debts of the bank, but also all costs and expenses necessarily incurred by him in the performance of his duties. Richmond v. Irons, 121 U. S. 65. A receiver appointed by a court of equity, under its ordinary powers, has the same powers and rights to proceed against stockholders as a receiver appointed by the Comptroller of the Currency. King v. Pomeroy, 121 Fed. 287. An assignee in bankruptcy or insolvency has the right to recover against the stockholders on account of unpaid stock, the amount sufficient to pay not only the debts of the concern, but also attorney’s fees, in making collection of the assessment. Sanger v. Upton, Assignee, 91 U. S. 62; Webster v. Upton, Assignee, 91 U. S. 65; Johnson, Trustee v. Allis, 71 Conn. 219.
   VALLIANT, P. J.

In a suit then pending in the St. Louis Circuit Court in which F. J. McMaster, assignee, etc., was plaintiff, and the Ozark Onyx Company, a corporation, was defendant, A. Moore Berry, the plaintiff in this suit, was appointed receiver to collect the assets and wind up’ the affairs of the corporation which was in that suit adjudged to be insolvent. Among orders made in that suit was one directing the receiver to ascertain who were creditors and how much was owing each and to bring suit against the stockholders of the corporation to collect the balances, if any, due on their stock subscriptions to the extent of a sufficient amount to pay the debts and expenses of the proceeding. In obedience to that order the receiver instituted this suit; the defendants in this suit were the officers and stockholders of the corporation.

This is the second appeal in this case. The pro*ceedings in this court on the first appeal are reported in 168 Mo. 316, to which we how refer for a more complete statement of the issues and facts than will be herein given. [Berry v. Rood, 168 Mo. 316.]

Reference to that report will show that when this cause came on for trial in the circuit court it was sent to a referee to try all the issues. A lengthy trial was had before the referee, who at its conclusion made a report to the court in writing and with the report filed in court a record of all the evidence taken at the trial.

By the referee’s report it appeared that the defendants, as incorporators and subscribers to the stock, launched the corporation on the business community with an ostensible full paid capital stock of $300,000, whereas in truth the stock was not paid for in money or money’s worth, hut only in property, the real value of which turned out to be inconsiderable. But the referee found that whilst that was so, yet when the defendants gave in the property they had such confidence in its prospective value that they really believed it was worth the face value of the stock and because they acted in good faith the referee held that they were not liable.

When the report came in plaintiff filed exceptions to it, both as to the findings of fact (chiefly to the findings that the incorporators acted in good faith), and also to the conclusions of law on the facts found. Defendants filed no exceptions to the report. Pending the exceptions filed by the plaintiff, the court re-referred the case to the same referee with instructions to ascertain and report if the defendants as officers of the corporation acted with ordinary business judgment and discretion in fixing the value of the property taken in payment of the stock. The referee accordingly reopened the case to try that question, and after a hearing reported to the court that defendants Rood and Leighton did not exercise reasonable care and ordinary business judgment and discretion in the matter, but that the other defendants did. To that supplemental report the plaintiff filed exceptions and the defendants Rood and Leighton filed exceptions. On final hearing the court overruled all the exceptions and rendered judgment for the defendants on the theory that although the property given in was of comparatively little value, yet they believed it to be of great value and thus acted in good faith. When the cause was here on the former appeal the main controversy was over the correctness of that theory. We reversed the judgment and held that the defendants were liable for the difference between the real value of the property given in and the face value of the stock, notwithstanding they may have believed that the property was of the value of the face of the stock. There is no- necessity for repeating now what we said then on that point; we are satisfied with the views there expressed. There were some other points discussed in the opinion in the former appeal, but the main point was the one above mentioned. The opinion concluded with this sentence: “The judgment is reversed and the cause remanded to the circuit court with directions to proceed to adjust the rights of the parties in accordance with the law as herein expressed.” In the judgment rendered in this court, after words reversing the judgment of the circuit court, was this clause: “It is further considered and adjudged by the court that the said cause be remanded to the circuit court of the city of St. Louis for-further proceedings to be had therein in conformity with the opinion of the court herein delivered.”

The plaintiff interpreted that opinion and judgment to mean a direction to the circuit court to enter judgment in his favor against the defendants respectively in proportion to their stock holdings in sums sufficient to pay the debts of the corporation as set out in the opinion and expenses of the receivership, including his own compensation and compensation for his attorneys, and he filed a motion in court asking such judgment.

.The defendants on the contrary interpreted the opinion and judgment of this court to mean that the judgment of the circuit court was reversed and the cause remanded to be tried anew in conformity to the law as declared in the opinion. The trial court sustained the plaintiff’s motion and ruled that the defendants would be allowed to introduce evidence only going to show that since the former trial matters have occurred which may lessen their liability as, for example, payment of creditors. Defendants duly excepted.

On the hearing of the motion the testimony of several expert witnesses was adduced on the part of the plaintiff to the effect that the services of the attorneys in the case were worth $5,000, and of the receiver himself from $1,000 to $1,500. There was evidence also of expenses paid out- in various amounts aggregating $59.75, all of which went in over the objections of defendants and exceptions were duly saved.

Plaintiff also read in evidence the report of the referee in the former trial and the articles of association of the Ozark Onyx Company.

Defendant read in evidence the pleadings and certain of the proceedings in the original suit of McMaster v. The Ozark Onyx Company in which the receiver was appointed and in which the receiver was ordered to bring this suit. Defendants also introduced proof to show that since the former trial the debts due the National Bank of the Republic and the Huttig Sash and Door Company had been paid.

On the evidence adduced the court found that there were debts due creditors of the corporation, in various amounts which with interest amounted then in all to $246.78, that certain expenses had been incurred, printing briefs, stenographer, copies of records, etc., to the amount of $59.75, and that to compensate the receiver and his attorneys $6,000' would be needed; whereupon the court rendered judgment against the defendants each in a sum in proportion to his stock-holding, the whole aggregating a sum sufficient to pay the debts, the expenses and compensation for the receiver and his attorneys as above mentioned. It was provided in the decree that if the assessment made against any one of the defendants could not be collected the deficiency was to be levied against the others in proportion, and also that if the aggregate of the sums collected should be more than would be needed to pay all the debts and expenses and compensation to the receiver and his attorneys, as the court in the final decree in the suit of McMaster v. the corporation might adjudge, the surplus was to Jbe returned in due proportion to the defendants. The defendants preserved their exceptions and have duly appealed from that judgment.

I. Defendants’ first suggestion is that, in the light of recent decisions of this court, the judgment of the trial court in the former appeal should have been affirmed because the appellant did not bring up all the evidence adduced at the trial, and in support of this suggestion defendants refer to State ex rel v. Jarrott, 183 Mo. 204; Patterson v. Patterson, 200 Mo. 335; Pitts v. Pitts, 201 Mo. 356; and Gruinan v. Donnell, 201 Mo. 173.

The law as laid down in those cases is that in an equity case it devolves on the appellant, who seeks to reverse the judgment, to incorporate into his bill of exceptions all the evidence that was heard at the trial and that on his failing- to do so the appellate court will not reverse the judgment if the pleadings will sustain it, even if it appears to he erroneous in the light of the facts found by the chancellor. In the Jarrott case we said: “The opposite party has obtained rights by this decree. He has a right to have the whole evidence upon which his decree is based before this court before it is reversed. He may be able from that evidence to show that the circuit court’s findings were erroneous, and the decree right notwithstanding such findings.” And in the Patterson case, replying to the suggestion that if the defendant was dissatisfied with the findings he should have excepted and filed his bill of exceptions embodying therein all the evidence, the court said: “That suggestion would impose on the defendant in whose favor the judgment was rendered the burden that the law imposes on. the plaintiff who is the appellant. But the defendant could not bring the evidence here, even if he were willing to bear the burden, because the judgment was wholly in his favor and he cannot appeal from it. If he had filed a bill of exceptions it would have lain in the circuit court and could never have been brought to us. A party brings up his bill of exceptions only when he takes an appeal or sues out a writ of error. ’ ’ That is the doctrine also in the Pitts and the Guinan cases, above cited. But the essential difference between those cases and the case at bar is that in this case the plaintiff, the appellant in the former appeal, did embody in his bill of exceptions all the evidence. “Where a bill of exceptions calls for the insertion of a document on file in the case as, “Here the clerk will copy it,” or other apt words, the document called for is a part of the bill of exceptions. In this case the evidence taken before the referee was returned into .court with the report, and the bill of exceptions called for the report and the evidence. But when the appellant came to make out his abstract he .did not put any of the evidence in it, and the defendants moved the court to affirm the judgment or dismiss the appeal, not because the evidence was not in the bill of exceptions, but because of the defect in the abstract. The difference between the condition of the records in the cases cited and that of this record is that in those cases the evidence had not been preserved so as to be available to the respondents, but here it was preserved and was at the service of these defendants if they had desired to avail themselves of it.

But it was said the abstract was insufficient. Section 813, Revised Statutes 1899', and rules 11 and 12 of this court provide that if the respondent is dissatisfied with the abstract filed by appellant he may file an abstract of his own making, and if in the end it turns out that he was justified in filing his abstract he may recover his costs. There is perhaps an element of unfairness in the law that imposes on the respondent a burden that justly belongs to appellant, but it is the law as prescribed by statute and as regulated by rules of court, and it is in the spirit of our code practice. It is in the same questionable light as to fairness as is the law that requires pleadings to be construed liberally instead of strictly as was the rule at common law; if a petition is vague and shadowy in its meaning, the law seems to say to the defendant, It is your duty to point out either by demurrer or motion to make more definite and certain wherein the plaintiff’s pleading is defective. That practice is not altogether free from the charge of unfairness, but as already said it is within the spirit of our code of civil procedure and, since it has been the practice so long, we may presume that on the whole it has been found to work out justice.

There is another reason why thes'e defendants have no cause to complain of the absence of the evideuce on the former appeal. The referee found as a fact that the property given in to pay for the stock was of little value, that is, not near the face value of the stock. If they had desired to challenge the correctness of that finding there was one way in which to do it, and only one, that is, to file an exception to the finding and ask the court to review it in the light of the evidence on file. The fact that the conclusion .of the referee on the law of the case was that defendants were not liable because they were not guilty of intentional fraud, did not prevent the defendants from filing exceptions to the report on the findings of facts; they had the right to ask the trial court to review those findings in the light of the evidence, and to insist that the judgment should be in their favor even though not on the ground recommended by the referee, but on the ground that the referee’s finding that the property given in payment for the stock was of little value was incorrect. But these defendants filed no exception to the report; they are therefore conclusively presumed to have acquiesced in the finding. Suppose the judgment had been against them and they had appealed, could they have asked this court to weigh the evidence and reverse the finding when they had not given the trial court an opportunity of doing so? In that particular the trial of an equity case does not differ from the trial in a law suit; if the losing party in an equity case does not file a motion for a new trial or rehearing and give the trial court an opportunity to correct its own error, if error there be, he cannot ask an appellate court to do so. A party failing to file an exception to a referee’s report is not entitled, as of right, to have either the trial court or the appellate court go through the evidence to see if the finding of fact was correct. Of course during the term the whole ease is in the breast of the trial judge, who, even in a law suit, may grant a new trial although no motion therefor was filed within the four days, .hut if the trial court refuses to grant a new trial when there has been no motion in time, the refusal is not subject to review on appeal.

We have said there- was no exception filed by defendants to this report, but we have not overlooked the fact that after the report was filed the cause was re-referred for a finding on a particular question and when that supplemental report came in two of the defendants filed an exception to the finding, but that finding was on a totally immaterial point. Under the law as laid down in the former appeal it was immaterial what the parties may in fact have thought as to the value of the property or how good judgment the officers of the corporation exercised in receiving it as full p-ay for the stock; if the property was not worth the face value of the stock the defendants were liable for the difference.

II. We come now to a consideration of the question, were the defendants entitled to a trial de novo of all the issues 1

We have seen that there were certain facts found by the referee at the first trial and upon those facts it was decided by this court that these defendants were liable to the extent indicated in the opinion and the cause was remanded to the circuit court with directions to proceed to adjust the rights of the parties in accord-' anee with the law as therein laid down. We have also seen that as to the facts so found the defendants did not-avail themselves of the opportunities the law afforded either in the trial court or this court to question the correctness of the findings.

In the face of the fact, as shown by the record, that all the property that the corporation had taken in payment of $300,000 of stock — land, machinery, plant and everything — was sold by the receiver under direction of the court aud brought only about $4,000, it is not unreasonable to conclude that the defendants did not care to try to convince the chancellor that it was really worth $300,000. But whether they were satisfied that the finding of the referee as to the value was correct or whether they relied with too much confidence in the conclusion the referee came to on the law, that is, that as long as no actual fraud was proven they were not liable, whatever the reason, the fact is they accepted the finding and together with the further finding of no fraud, they based their plea before the court for a judgment in their favor. Having so submitted the case for judgment they are bound by it and the fact as to them is res adjudicata. Therefore, when the cause went back to the circuit court the facts found in the referee’s report were not open for controversy, and the law expressed in the opinion as applicable to those facts was to be taken by the circuit court as the law of the case.

The trial court did not err in holding that the cause was not open for a trial de nova.

III. The point is made that after McMaster, as assignee of the Providence Jewelry Company, began the suit he made a re-assignment back to the Jewelry company and that the record does not show that the Jewelry Company by order of court was substituted as plaintiff in the cause. That is so, but the record does show that the Jewelry Company after the re-assignment came into court and filed an amended petition reciting the fact of the re-assignment and thereafter assumed the position of plaintiff in the cause and was so treated by the court. There should have been an order of court entered on the record authorizing such substitution, but that was overlooked. We do not think, under the circumstances of this case, the omission was fatal to the further proceedings. Besides, if there was any merit in the point it should have been made in the trial court on the first trial of this cause and brought to the notice of this court on the former appeal.

IV. On the hearing of the cause on plaintiff’s motion for a judgment the evidence showed that the two largest debts of the corporation had been paid since the judgment of this court on the former appeal, and there were left unpaid only a few small debts amounting in all, with interest for several years, to $246.78. Why the receiver did not pay those small ■ cMs out of what was left in his hands of the $4,000' he ■ eived as proceeds of the sale of the tangible property after paying the seven per cent dividend to the creditors does not appear, but at all events the only real contention now remaining in the case is the claim of the receiver that the stockholders are liable to him for $1,000 as compensation for his services and $5,000 a* compensation, for the services pf his attorneys. There was expert evidence on the part of the plaintiff to the effect that $1,000 to $1,500 would be a reasonable amount to compensate the receiver for his services, and that the services of the attorneys were worth $5,000'. There was also evidence that expenses for various items had been incurred by the receiver amounting to $59.75-. The court seemed to take the opinions of the experts as conclusive and found that it would require $6,000 to pay the receiver and his attorneys what their services were worth. Opinion evidence is not conclusive when the trier of the fact is competent to form an opinion of his own. The judgment was that the defendants should pay, in proportion to their stock holdings, sums sufficient to pay the $246.78 debts, the $59.75 expenses, and $6,000 to create a fund out of which to pay compensation to the receiver and his attorneys.

There has been no allowance made by the court to the receiver for compensation for himself or Ms attorneys in the suit in which the receiver was appointed, ¡that is, the suit of McMaster v. The Ozark Onyx Com-party, and the judgment in the case at bar does not undertake to make such allowance, but only to provide a fund in the hands of the receiver out of which the allowances may be paid when the court in the former suit makes them, and the decree provides that if the court should not allow that much the surplus is to be returned to the defendants.

When a receiver is rightfully appointed he is entitled to payment for his services out of the funds that come into his hands as receiver and the amount of his compensation in the first instance is to be fixed by the court which appointed him. If litigation ensues and the receiver needs the aid of an attorney he may, with leave of the court, employ one, and the receiver is entitled to an allowance out of the estate in his hands with which to pay his attorney, the court fixing the amount. It has been held that these fees and expenses when allowed by the court are entitled to be paid out of the assets in the receiver’s hands before other demands. [Alderson on Receivers, p.. 833.] That preference goes on the theory that the services rendered are for the benefit of the creditors or those otherwise interested in the property, and therefore payment for the same is a proper charge on their interest. In the case of an insolvent concern the receiver undertakes to collect the assets for the benefit of the creditors, and it is not unreasonable therefore that the funds collected to pay their debts should be tolled for the cost of collection. If the assets that come into the hands of the receiver are sufficient to pay all the debts in full and a surplus of assets remains the expenses of the administration may be paid out of that surplus. But the appellants raise this point: they say that if they are liable at all it is only for a sum sufficient to pay for the debts of the corporation, that they are not liable for attorney’s fees or receiver’s fees. It is argued that this is a suit ostensibly in the interest of the creditors, that the statute gives them a remedy at law, section 985', Revised Statutes 1899, which remedy if these creditors had seen fit to pursue would have been pursued at their own expense as to attorneys’ fees, and whilst it is not contended that the remedy given by statute deprives the equity court of its jurisdiction yet there is an analogy that should not be overlooked. If creditors sue a live corporation and levy their debts out of its tangible assets they are not allowed an additional levy to pay their attorneys, but they pay that expense out of their own recovery. The question of the liability of the stockholders for receiver’s fees and attorney’s fees was not decided on the former appeal, because it was not raised then and had not been decided in the trial court. The extent of the decision on the former appeal was that “the original incorporators are liable in this suit to the extent that may be necessary to pay off the debts of the concern to creditors who extended credit without knowledge of the fact that the corporation had accepted the property in payment of the stock and to the extent also of the cost of this proceeding.” But costs in a law suit do not mean attorney’s fees. [St. Louis v. Meintz, 107 Mo. l. c. 615; Albers v. Merchants’ Ex., 138 Mo. l. c. 159-1601.] Neither are we now deciding, nor intimating an opinion on that question, because it has not yet been decided by the trial court and is not before us for review.

Our attention is also called to what the defendants regard as an unreasonable disproportion between the amount of the debts established against the corporation, the amount of its tangible assets and the asserted expenses of the receivership. The litigation was begun by McMaster as assignee of the Providence Jewelry Company, stating in his petition that the corporation was insolvent, that it owned about $15,000 of assets, and that it owed the Providence Jewelry Company about $16,000 besides other debts. After the receiver was appointed, the debts were established in a proceeding before him, in which it was found that the corporation owed for principal and interest up to that date $25,258.55, of which $19,487.49 was the amount due the Providence Jewelry Company, leaving $5,771.06 the aggregate of the debts due other creditors. On the former appeal it was adjudged that the Jewelry Company had no right to hold the stockholders for any part of the debt due it; therefore, there remained of the-debts for which the stockholders were liable, according to the record we had on the former appeal, for principal and interest at the date of the report of the receiver, less than $6,000. And the evidence on the trial of the plaintiff’s motion for a judgment, which we are now reviewing, shows that whilst those creditors, other than the Jewelry Company, came in and proved up their debts before the receiver when they were notified to do so yet they never became parties to that suit or this, and have made no move in this litigation. It also now seems that the debt next largest to that of the Jewelry Company, to-wit, the $4,000 debt due the Bank of the Republic, was paid after the decision in the former appeal by an endorser of the notes who himself was one of the largest stockholders in the corporation and who, although entitled to have a prorata of the other assets of the corporation applied to the payment of the debt, yet under the law as declared in the former appeal was in no condition to pursue the other stockholders. Prom this it would seem, as it' turned out, that at the date of the filing of the McMaster suit the total amount of debts for which the stockholders could have been held was less than $2,-000. On this showing defendants contend that even if they are liable to be taxed for a sum to pay the receiver and his attorneys, $1,000 for the one and $5',000 for the others are out of proportion to the bulk of the interests involved, the responsibility assumed and the intricacies of the litigation. We do not say as a finding of fact that those figures are correct, but there is sufficient evidence of their correctness to entitle the defendants to be heard on the question.

The case is hardly ready for a decision on the question of whether the stockholders are liable for receiver’s fees and attorney’s fees or, if so, whether the sums now demanded are reasonable, because those questions have not been passed on by the trial court. The only court that can, in the first instance, pass on the question of allowances to the receiver for himself and his attorneys, is the court in which the suit in which the receiver was appointed is still pending, and even then the allowances made by that court in that case are not binding on the stockholders, because they are not parties to that suit. But after the court in that case makes allowances the receiver will be authorized to come into the court in which this suit is pending and ask in this suit for judgment against the stockholders to satisfy the allowances, and then both questions that the defendants now raise will be open. The trial court in this case will then have to exercise its own judgment as to whether the defendants are liable for such fees and if so what is a reasonable amount and from the judgment so rendered either party may appeal.

In the judgment now before us for review the trial court has not decided either that the defendants are liable or that the amount claimed is just compensation; the effect of the judgment under review is to provide a fund of $6,000 out of which to pay the allowances if ever they are ordered, and the surplus, if any, to be returned to the defendants. The course that the trial court took in rendering that judgment is not without precedent and under some circumstances might be proper procedure, but in the case at bar’ there was no occasion to take up the subject before the court in the original canse had passed judgment on the question and had made or refused to make the allowances asked.

Both these are suits in equity in which the original points in litigation have been decided, and they are both held open now only for the purpose of making orders in relation to costs and expenses and to carry into effect the judgments rendered.

The judgment is reversed and the cause remanded to the circuit court with directions to proceed with the cause in conformity with the law as herein expressed.

Lamm and Graves, JJ., concur; Woodson, Jdubitante.


author: WOODSON, J.

text:
    BERGER MANUFACTURING COMPANY v. HIRAM LLOYD et al., Appellants.
    Division One,
    February 26, 1908.
    CONTRACTOR’S BOND: Liability to Materialman's Vendor. A contractor entered into a contract for. the erection of a building and gave bond to the owner to “make payment to all parties furnishing materials used in the work,” and the contractor sublet the metal work to a subcontractor, who bought the metal from plaintiff, who sues on the bond on the theory that it was a materialman. The contractor paid the subcontractor for the metal which went into the building, but the subcontractor did not pay the plaintiff. Held, that the bond was satisfied when the contractor paid the subcontractor, and plaintiff cannot recover on the bond because the subcontractor did not in turn pay plaintiff for the material.
    Transferred from St. Louis Court of Appeals.
    Reversed.

      Henry A. Hamilton for appellants.
    (1) A contract between two parties upon a valid consideration may he enforced by a third party, when entered into for the benefit of such third party, even though, he may not be mentioned in the contract, and though he was not privy to the consideration. Rogers v. Gosnell, 58 Mo. 590; State ex rel. v. Gaslight C'o., 102 Mo. 482; Ellis v. Harrison, 104 Mo: 270; City to use v. Yon Phul, 133 Mo. 561; Devers v. Howard, 144 Mo. 671; School District v. Livers, 147 Mo. 580; Bethany v. Howard, 149’ Mo. 504; Lime & Cement Co. v. Wind, 86 Mo. App. 163. (2) No one has a right of action on an agreement except those who are in the minds of the parties as beneficiaries’ of its provisions, and it must be determined from the language employed in the instrument what parties were intended as beneficiaries by the parties to the agreement. State ex rel. v. Loom-is, 88 Mo. App. 500; Ellis v. Harrison, supra; Howsmon v. Water C'o., 119’ Mo. 304; State v. Railroad, 125 Mo. 596; Porter v. Woods, 138 Mo. 539; Ins. Co. v. Water Co., 42 Mo. App. 118. (3) The contract and bond involved in the case at bar must be construed together, and the obligation of the sureties on the bond should not be enlarged beyond what is warranted by a fair and reasonable construction of its terms. Sexton v. Anderson, 95 Mo. 373; Houck v. Frisbee, 66 Mo. App. 16; Bauer v. Cabanne, 105- Mo. 110; Cochrane v. Stewart, 63 Mo. 424; Erath v. Allen, 55 Mo. App. 107; Bricken v. Stone, 47 Mo. App. 530.

      JR. M. Nichols for respondent.
    Plaintiff, materialman of the sub-contractor, the Quernheim Company, is embraced within the meaning of the bond, both in its literal interpretation and under repeated decisions. Lime & Cement Co. v. Wind, 86 Mo. App. 163; State ex. rel. v. Loomis, 88 Mo. App. 500; Forge Co. v. Cullen & Stock, etc., 105 Mo. App. 484; St. Louis v. Yon Phul, 133 Mo. 565; Devers v. Howard, 44 Mo. 671; School Dist. v. Livers, 147 Mo. 581; City of Bethany v. Howard, 149 Mo. 504; Crone v. Stinde, 156 Mo. 263; Lime & Cement Co. v. Bank, 158 Mo. 273.
   WOODSON, J.

This suit was instituted in the circuit court of the city of St. Louis by the plaintiff against the defendants, as the principal and sureties on a bond executed by them to the Board of Education of that city, conditioned that Hiram Lloyd, the principal, would faithfully perform a building contract therein mentioned, according to all the terms thereof, and should make payment to all parties furnishing materials used in the work provided for in said contract and specifications thereto annexed, including any alterations and additions that might be made, and for all labor performed on said work, whether by sub-eon-tract or otherwise, then said obligation should be void, otherwise the same should remain in full force and virtue.

For a breach of said bond the plaintiff states that the said defendant, Hiram Lloyd, did enter into a contract with the Quernheim Steel Metal Works Company whereby the said Quernheim Steel Metal Works Company agreed to furnish all the sheet metal work required under the provisions of the aforesaid contract, and that pursuant to said contract and between the 11th day of March, 1902, and the 27th day of March, 1902, inclusive, the said Quernheim Sheet Metal Works Company did purchase and receive from this plaintiff twelve thousand, four hundred and thirty pounds of No. 24 gauge galvanized iron at $3.99 per 100 pounds, amounting to $495.96, and also one hundred and five pounds of half-and-half solder at seventeen cents per pound, amounting to $17.85, and amounting in all to $513.81, for which it failed to pay plaintiff; that the said Hiram Lloyd used said material in the construction of said school house, under the provisions of the said first-mentioned contract.

Plaintiff then states that it requested payment of said amount from defendant, Hiram Lloyd, and payment was refused; that it was familiar with the terms of the contract- entered into between defendant Lloyd and the Board of Education, and that it relied on the provisions of the contract and bond as security for the payment of the material furnished by it, and prays judgment for the penalty of the bond, $52,128.50, and that its damages be assessed at $513.81 and costs.

The answer of defendants consisted of:

First. A general denial.

Second. The second defense alleged that the contract and bond were executed as alleged in the petition; that the Quernheim Sheet Metal Works Company did agree with defendant, Hiram Lloyd, to furnish the sheet metal work for the Emerson School; that said company did furnish it to- defendant, Hiram Lloyd, and that said Lloyd paid Quernheim Sheet Metal Works Company all he had agreed to pay for the material furnished by that company. Then followed the general allegation: “Defendants further say that defendant, Hiram Lloyd, did erect, construct ard build said school house, and did furnish at his own co-T and exuewe all material used in the construction of the said Emerson School, and did pay the' wages ’of all artisans and laborers and all those employed by or furnishing material to said Hiram Lloyd, and did make payment to- all parties furnishing the same for all material used by said Hiram Lloyd in aforesaid work, provided for in the contract between said Hiram Lloyd and said Board of Education, and for all labor performed on such work, whether by sub-contract or otherwise.”

Third. Defendants pleaded that the bond men-, tioned in plaintiff’s petition provided that the obligee might assign the same to'any sub-contractor, material-man or laborer, who at the instance of the principal obligor, had furnished work or material towards the completion of the contract, and that such subcontractor, materialman or laborer should have no benefit or right under the said bond until the same was so assigned. That the said bond was never assigned to plaintiff by the Board of Education and that plaintiff had no right or authority to institute or maintain this action.

Plaintiff’s reply was a denial of the matters set forth in the answer.

There is no dispute regarding the facts of the case. The evidence shows that Lloyd entered into the contract with the Board of Education to construct the school house mentioned, and executed the bond in question for the purposes stated in the petition; that Lloyd also entered into a contract with the Quernheim Sheet Metal Works Company, whereby it agreed to furnish all the sheet metal work required under the provisions of the building contract; that the Quernheim Sheet Metal Works Company purchased of plaintiff the galvanized iron and solder mentioned in the petition; that the same was used in the construction of said school building; that the purchase price was reasonable; and that the said Metal Company never paid plaintiff any sum on the purchase price thereof. It is also an undisputed fact that Lloyd did pay to Quernheim Sheet Metal Works Company the full contract price of all materials purchased by it of plaintiff; but the said Metal Company never paid the plaintiff therefor.

The court, over the objections of the defendants, instructed the jury that, if they found the facts to be as above stated, then their verdict should be for the plaintiff.

The defendants asked an instruction in the nature of a demurrer to the evidence, which was, by the court, refused; and to the action of the court in giving and refusing said instructions the defendants duly excepted.

The jury found for the plaintiff, and judgment was entered accordingly. After an unsuccessful motion for a new trial had been passed upon, the defendants appealed the cause to the St. Louis Court of Appeals. That court handed down an opinion in the cause reversing the judgment of the lower court, but one of the judges dissented therefrom and certified the case to this court.

I. There is but a single question involved in this appeal, and presented thereby for our determination; and that is whether or not the contractor, Lloyd, and his securities, are liable on the bond in suit to the vendor, the plaintiff, for the price of building material sold by it to Quemheim Sheet Metal Works Company, who contracted with Lloyd to furnish the metal work called for in his contract with the Board of Education. The plaintiff affirms and the defendants deny that proposition. The proper determination of that question must be solved by ascertaining the intention of the parties to the contract and bond made and executed to the Board of Education.

The contract and specifications call for certain metal work, which required the furnishing of so much galvanized iron and solder; and the bond was conditioned that the contractor should faithfully perform the contract- and should make payment to all parties furnishing material used in the work provided for in said contract and specifications.

The contractor sub-let the metal work to be done, including the required materials, to the Quemheim Sheet Metal Works Company, who, under this contract with Lloyd, furnished the galvanized iron and solder called for by the contract and specifications made with the Board of Education. It is not contended by plaintiff that the.said Metal Company did not furnish those materials to Lloyd, or that they did not go into the building; but plaintiff does contend that it furnished that material to the Metal Company and that the latter furnished it to Lloyd, which plaintiff insists is equivalent to its furnishing them direct to Lloyd, and for that reason it is a materialman within the meaning of the bond.

We are unable to concur in that construction of the bond. Evidently the parties thereto meant just what they expressed in the bond, namely, that Lloyd, the contractor, should ‘ ‘ make payment to all parties furnishing materials used in the work.” The Metal Company furnished the materials used, and it was paid in full therefor by Lloyd, the contractor, according to the letter and the spirit of the bond. If the contention of plaintiff is sound, and the contractor is required to pay it also for the same materials, then where will his liability stop?

If Lloyd is liable under the bond to plaintiff for the materials it sold to the Metal Company then under the same process of reasoning he would also be liable to the jobber or manufacturer who sold the materials to the plaintiff and so on ad infinitum, and he and his securities would never reach the end of their liability.

It is thus seen that by carrying plaintiff’s contention to its logical and inevitable conclusion, it would lead us to the absurdity above suggested, which, of course, shows the unsoundness of its position.

We are, therefore, of the opinion that the conclusions reached by the majority opinion of the Court of Appeals is correct, and that the circuit court erred in giving and refusing instructions.

The judgment of the circuit court is reversed.

All concur.