author: ELDER, J.

text:
    DAVID E. MARTIN et al., Plaintiffs in Error, v. RAY COUNTY COAL COMPANY.
    Division One,
    June 6, 1921.
    1. PETITION: Cause of Action: General Demurrer. In the face of a general demurrer charging that the petition does not state a cause of action, all facts properly pleaded, and all inferences of fact that may fairly and reasonably be drawn therefrom, must be taken as true.
    2. .-: -: Contract of Sale: Elements: Breach and Damages: General Demurrer. Allegations in the petition stating the following elements of a contract for the sale of coal sued on, to-wit: (a) the parties (plaintiffs and defendant); (b) the subject-matter (100 to 3.00 tons of coal per day); (c) the quantity (the entire output of defendant’s mines, not exceeding 300 tons per day); (d) the price ($1.80 per ton); (e) the place of delivery (the usual place); (f) the time of delivery (daily from May 1, 1916, to July 31, 1918); (g) a partial performance of the contract (that from May 1st until November 20, 1916, defendant kept and performed all the terms and conditions of the contract, by delivering to plaintiffs the entire output of its mines, and received from plaintiffs the price agreed to be paid therefor); (h) a breach of said contract (that after November 20, 1916, defendant wholly failed and refused to deliver to plaintiffs said coal or any part thereof); and (i) the resultant damages to plaintiffs in a named sum, are neither vague nor indeterminate, and in the face of a general demurrer to the petition must he taken as true, and embrace all the essential elements of a valid contract of sale.
    3. -: -: Consideration: Mutuality of Obligation: Part Performance. Allegations in the petition that plaintiffs agreed “to 'purchase of defendant a minimum of one hundred tons or a maximum of three hundred tons of bituminous coal per day, at and for the agreed price of $1.80 per ton;” that thereafter defendant executed and delivered to plaintiffs a written memorandum confirming the said agreement and that defendant “thereby bound itself to sell and did sell and deliver unto plaintiffs said coal according to the stipulations and to the effect as hereinbefore alleged;” that thereafter plaintiffs “with the consent of defendant elected to take under and by virtue of said contract the maximum quantity of coal mentioned therein,” and that from May until November, 1916, defendant delivered to the plaintiffs “the entire output of its said mines, and received therefor from plaintiffs the price agreed to be paid for said coal,” state mutual and reciprocal promises, and a contract that is not lacking in either consideration or mutuality. And even though the contract so pleaded may lack in mutuality, the part performance thereof, as alleged, made it binding on both parties.

      i. -:--: Defense of Statute of Frauds: How Raised. The defense that the contract pleaded does not comply with the Statute of Frauds cannot be raised by demurrer, but to be available must be specially pleaded in the answer, and if not so pleaded will be waived. So that where plaintiffs’ petition alleged that they orally agreed with defendant to purchase from it coal upon certain stated terms and that “thereafter, as evidence of and in confirmation and ratification of said contract and oral agreement, defendant, through the agent then in charge of and managing its business, made, executed and delivered unto plaintiffs its written memorandum of agreement whereby said oral contract and agreement was in all things confirmed and said defendant thereby bound itself to sell and did sell and deliver unto plaintiffs said coal according to the stipulations and to effect as hereinbefore alleged,” the defense that the contract alleged did not comply with the Statute of Frauds cannot be raised by demurrer.
    Appeal from Chariton Circuit Court. — Son. Fred Lamb, Judge.
    Reversed and remanded {with directions).

      Perry 8. Bader and Ed. E. Tates for plaintiffs in error.
    (1) Upon the sustaining of a demurrer to a first amended petition a cause cannot be dismissed out of court; and whether or not plaintiffs’ first amended petition stated a cause of action, the court erred in rendering final judgment against plaintiffs, as it did by adjudging that “the same be dismissed” and “that the defendant go hence without day and recover of the plaintiffs its costs herein expended.” Secs. 1803, 1824, 1825, 1826, R. S. 1909; Comstock v. Davis, 51 Mo. 569; Wells'v. Moore, 49 Mo. 229; Bennett v. Bank, 61 Mo. App. 297; Gordon v. Burris, 125 Mo. 39. (2) The judgment in this ease is a final judgment. It concludes with the words: “Wherefore it is by the court ordered and adjudged that plaintiff take nothing by his petition herein; that the same be dismissed; that the defendant go hence without day and recover of the plaintiff its costs herein expended.” Those are apt words for a final judgment. Rogers v. Gosnell, 51 Mo. 466; Bowie v. Kansas City, 51 Mo. 459; Moody v. Deutseh, 85 Mo. 244; O’Connor v. Koch, 56 Mo. 262; Flanagan v. Hutchinson, 47 Mo. 237; Johnson v. United Rys., 227 Mo. 430-434. It is universally held that a judgment adjudging that “the defendant go hence without day” is a final judgment. Boggess v. Cox, 48 Mo. 279; Lisle v. Rhea, 9 Mo. 172; Jones v. Hoppie, 9 Mo. 175; Moran v. Plankington, 53 Mo. 243; Palmer v. Crane, 8 Mo. 622; Lyons & Reesman v. Rollinson, 109 Mo. App. 70-72. The circuit court had no authority under Secs. 1803, 1824 and 1825, R. S. 1909, to render a final judgment on the demurrer to the first amended petition, but it did nevertheless render a final judgment and discharged defendant out of court. (3) A demurrer is not the way to obtain the benefit of the Statute of Frauds. A contract being alleged in the petition, the Statute of Frauds is available as a defense only upon the filing of an answer. Phillips v. Harden-burg, 181 Mo. 472; Devore v. Devore, 138 Mo. 185; Mugan v. Wheeler, 241 Mo. 381; Martin v. Harrington, 174 Mo. App. 708; Moormeister v. Hannibal, 163 S. W. 928; Graff v. Foster, 67 Mo. 521; Maybee v. Moore, 90 Mo. 340; Gardner v. Armstrong, 31 Mo. '539; Mo. Real Estate Synd. v. Sims, 179 Mo. 685; Hurt v. Ford, 142 Mo. 300; Mathews v. Wallace, 104 Mo. App. 98. Since the petition in this case specifically alleges that defendant made, executed and delivered to plaintiffs its written contract, a demurrer is not the jjroper method to test the sufficiency of said contract. (4) The demurrer must distinctly specify the grounds of objection to the petition. Sec. 1801, R. S. 1909; McClurg v. Phillips, 49 Mo. 316; Hanson v. Neal, 215 Mo. 277; Zeideman v. Molasky, 118 Mo. App. 122. The only part of the demurrer that attempts to'specify defendant’s objections to the amended petition is its second paragraph. The first specification in that paragraph is that the contract is not in writing, which is a statement flatly contradicted by the petition itself, which specifically alleges that the contract sued on was reduced to writing. The second objection is not distinctly specified. The objection is that the memorandum of the contract was not ‘ ‘ signed by the defendant party to be charged, or by any other person lawfully authorized by defendant.” There is a two-fold answer to that. The first is found in the petition itself, which alleges that “the defendant, Ray County Coal Company, through the agents then in charge of and managing their business, executed and delivered to plaintiffs its written memorandum of agreement,” and that made an issue of fact, which can be met only by an answer. If the objection means that “F. TI. Werhies, Secy. & Treas. Ray County Coal Co.,” did not have authority to enter into said contract with plaintiff, it raises a question of fact, which can be established or refuted only by evidence, and answered by a jury. (5) When a petition is attacked by a general demurrer, all the facts well pleaded and all the inferences of fact that may be fairly and reasonably drawn from the facts alleged, must be taken as true. If facts essential to a recovery are pleaded, however inartifieially or defectively, a general demurrer thereto will not lie. Am. Brewing Co.' v. St. Louis, 187 Mo. 381; Rodgers v. Fire Ins. Co., 186 Mo. 255; Newton v.. Newton, 162 Mo. 182,187; Ball v. City of Neosho, 109 Mo. App. 688. That part of defendant’s demurrer charging that “the petition does not state sufficient facts to constitute a cause of action against the Ray County Coal Company” was a general demurrer. Am. Brewing Co. v. St. Louis, 187 Mo. 375. (6) Where the plaintiff pleads a contract the law presumes its validity, and presumes that it is in writing if the law requires it to be written, and presumes that it is such a contract as the law requires; and if defendant objects to it as void by reason of non-compliance with the Statute of Frauds, he must make the defense in his answer. Maybee v. Moore, 90 Mo. 343; Ilallock v. Brier, 80 Mo. App. 336; Phillips v. Hardenburg, 181 Mo. 473; Mugan, v. Wheeler, 241 Mo. 381; Martin v. Harrington, 174 Mo. App. 708; Sharkey v. McBermott, 91 Mo. 652; Cape Girardeau & Chester Railroad v. Wingerter, 124 Mo. App. 430.

      George W. Croivley and Lavelock $ Kirkpatrick for defendant in error.
    (1) Where it is evident, from the face of the petition, that the requirements of the Statute of Frauds have not been complied with, this statute may be effectually invoked by a demurrer. 9 Ency. Plead. & Prac. pp. 708, 709; Chambers v. Lecompte, 9 Mo. 577; Gardner v. Armstrong, 31 Mo. 540. (2) One of the grounds of demurrer, is that “the petition .does not state facts sufficient to constitute a cause of action against the Ray County Coal Company.” Under the rulings in this State, this is sufficient. Bank v. Haden, 35 Mo. 362; Bank v. Young’s Adrar., 35 Mo. 372; Morgan v. Bouse, 53 Mo. 221; Jordan v. Railroad, 61 Mo. 54; State v. Weeks, 77 Mo. 498 ; Wilson v. Polk Co., 112 Mo. 134; Hallock v. Brier, 80 Mo. App. 336; Underwood Typewriter Co. v. Realty Co., 118 Mo. App. 207. (3) The court dismissed plaintiffs’ alleged cause of action, because plaintiffs voluntarily refused to avail themselves of the privileges allowed them under the statute and the law of this State. The dismissal amounted to a nonsuit. Meddis v. Wilson, 175 Mo. 132; Dean v. Railroad, 148 Mo. App. 449; Manning v. Ins. Co., 176 'Mo. App. 684; Mason v. Railroad, 226 Mo. 212; Rubber Co. v. Wernicke, 166 Mo. App. 128. (4) The dismissal or nonsuit entered herein,' was, in legal effect, by reason of plaintiffs’ voluntary refusal to exercise the rights accorded them under the law, a voluntary dismissal. Plaintiffs should have, by an entry made of record, elected to stand on the second petition, or put into effect the rights granted them under the statute, and by declining to do this, they defaulted and confessed that their cause of action should be dismissed. Plaintiffs voluntarily forced the court to either make the entry it did make, or leave the whole matter undetermined, until it suited the convenience of plaintiffs to act herein. The dismissal was the result of the voluntary acts of plaintiffs, from which neither an appeal nor writ of error should be prosecuted. Louisiana Co. v. Mitchell, 20 Mo. 433; Gentry Co.'v. Black & Stout, 32 Mo. 543; Kirby v. Bruns, 45 Mo. 236; Poe v. Dominic, 46 Mo. 113; Lay-ton v. Riney, 33 Mo. 88; Koger v. Hayes Admr., 57 Mo. 330; Greene County Bank v. Gray, 146 Mo. 571; State v. Lubke, 15 Mo. App. 166; Schneider v. Kirkpatrick, 72 Mo. App. 106. (5) The alleged oral agreement commencing on the 1st day of May, 1916, and ending on the 31st day of July, 1918, was vague, indefinite, uncertain, without mutuality or consideration invalid and unenforcible. Sec. 2783, R. S. 1909; Jones v. Durgin, 16 Mo. App. 370; Campbell v. Llandle Co., 117 Mo. App. 19; Reigart v. Coal & Coke Co., 217 Mo. 142; Hudson v. Browning, 264 Mo. 58; White Oak Coal Co. v. Ed. E. Squier Co., 219 S. W. 697. (6) The fact, if it be a fact, as it is alleged, that defendant, during the months of May, June, July, August, September and October and a part of November, 1916, delivered to plaintiffs the entire output of it mines, and that during that time plaintiffs paid therefor, did not validate or make binding the unexecuted part of said alleged contract. Campbell v. Handle Co., 117 Mo. App. 23; Jones v. Durg’in, 16 Mo. App. 374.; Hudson v. Browning, 264 Mo. 67; Bolt & Nut Mfg. Co. v. St. Louis Car Co., 216 Mo. 733. (7) The alleged oral agreement in plaintiffs’ first amended petition, is of no binding force or effect on defendant. The defendant was not bound or obligated to mine, furnish or deliver to plaintiffs, coal in any quantity whatever. The alleged contract is without mutuality or consideration, and is therefore void. Pludson v. Browning, 264 Mo. 58; Beigart v. Coal & Coke Co., 217 Mo. 142; Campbell v. Handle Co., 117 Mo. App. 19; Jones v. Durgin, 16 Mo. App. 375; Coal Co. v. Ed. E. Squier Co., 219 S. "W. 697. (8) Suppose that plaintiffs agreed to purchase of defendant, and defendant agreed to sell and deliver to plaintiffs the enT tire output of its mines, at a fixed price, there being no agreement requiring defendant to operate its mines, or any agreement as to what the output should be, and that thereafter the contract was partly executed; is not such a contract, as to the unexecuted portion thereof, uiienforcible for uncertainty? Brown Paper Box Co. v. Mercantile Co., 190 Mo.' App. 584. (9) That part of See. 2784, B. S. 1909, which says “unless the buyer shall accept a part of the goods so sold and actually receive the same” is not controlling in this case, nor does it apply to the facts herein. Beigart v. Coal &■ Coke Co., 217 Mo. 165.
   ELDER, J.

This is an action for damages for alleged breach of contract, brought by plaintiffs, who are partners engaged in the business of mining, buying and selling coal, against the defendant company, which is the owner and operator of certain coal mines located near Bichmond, Bay County, Missouri.

The suit was begun on October 7, 1918, by petition filed in the Circuit Court for Ray County. Summons was issued and returned executed on October 8, 1918. On October 21, 1918, defendant filed a demurrer to tbe petition. On October 22, 1918, upon application of plaintiffs, a change of venue was granted to Chariton County. On February 6, 1919$ by agreement the cause was continued by the Circuit Court for Chariton County to April 12, 1919. On April 12,1919, by agreement of the parties the cause was further continued to- April 15, 19,19. On April 15, 1919, the court sustained defendant’s demurrer and dismissed the petition, neither plaintiffs nor their counsel being- then present. On May 28, 1919, counsel for defendants acknowledged notice, given by counsel for plaintiffs, that on June 2,1919, plaintiffs would present a motion to set aside and modify the order sustaining the demurrer. and for leave to file an amended petition. Such motion was filed, but no action was taken thereon until June 9, 1919, when the motion was sustained by the court, the judgment of dismissal was set aside and leave was granted plaintiffs to file an amended petition. On the same day, viz., June 9, 1919, plaintiffs filed their first amended petition. Said amended petition, formal parts omitted, with the exhibit referred to therein, is as follows:

“.Plaintiffs for their cause of action against defendant say that on or about’May 1st, 1916, they orally agreed with the defendant corporation, Ray County Coal Company, acting by and through its manager and selling agent then having charge of its business, to purchase of said corporation a minimum of one hundred tons or a maximum of three hundred tons of bituminous coal per day, to be delivered to plaintiffs at the usual place of delivery, same being the product of the mines of said Ray County Coal Company, at and for the agreed price of one dollar and eighty cents per ton, to be paid therefor by plaintiffs to defendant Coal Company, with the further agreement and understanding that said contract and agreement between said parties should remain and be effective and in full force for a term ending the 31st day of July, 1918.

“That thereafter on said 1st day of May, 1916, as evidence of and in confirmation and rati li cat ion of said contract and oral agreement so set out hereinbefore, said defendant, Eay County Coal Company, through . the agents then in charge of and managing their business, made executed and delivered unto plaintiffs its written memorandum of agreement whereby said oral contract and agreement was in all things confirmed and said defendant thereby bound itself to sell and did sell and deliver unto plaintiffs said coal according to the stipulations and to the effect as hereinbefore alleged. A copy of said memorandum and agreement is hereto attached, marked ‘Exhibit A,’ and made a part hereof.

“That thereafter plaintiffs with the consent of defendant elected to take under and by virtue of said contract the maximum quantity of coal mentioned therein, the same being the entire output of defendant’s said mines, not to exceed the said maximum quantity, to-wit, 300 tons of coal per day.

“That following said contract and in accordance with its terms defendant Coal Company, during the months of May, June, July, August, September, October and until the 20th day of November, 1916, kept and performed in all things the terms and conditions of its said agreement and delivered unto plaintiffs at the usual place where same should have been delivered under the aforesaid contract as it was bound to do the entire output of its said mines, the same being in amount and tonnage as hereinafter stated, and received therefor from plaintiffs the price agreed to be paid for said coal.

“That on the 7th day of October, 1916, because of the increased wage scale which said defendant Coal Company was thereafter compelled to pay its miners, the price to be paid by plaintiffs to said defendant for its output of coal, as aforesaid, was voluntarily advanced to one dollar and eighty-six cents per ton, for and during the remaining term of said contract.

“That defendant, Ray County Coal Company, at all times hereinbefore mentioned and prior to the making of its agreement with plaintiffs on May 1st, 1910, well knew that plaintiffs had contracted and sold to the Atchison, Topeka & Santa Fe Railway Compaq a large quantity of coal, to-wit: an amount equal to or in excess of the entire output of defendant Coal Company’s mines so purchased by plaintiffs as aforesaid; which contract and sale of coal to said Railway Company by plaintiffs was made in reliance upon and in faith of plaintiffs in the contract obligation of defendant, Ray County Coal Company, to deliver unto plaintiffs said 300 tons of coal per day, being the maximum output of their said mines, as, when, where and at the price and according to all the terms of the contract and agreements hereinbefore recited. That in order to fulfill its contract obligation with said Railway Company plaintiffs were ever after November 20, 1916, compelled to and did furnish and deliver unto said Railway Company coal in amount equal to the output of the mines of said Richmond Coal Company, which said coal so furnished unto said Railway Company by plaintiffs was mined by plaintiffs from their own mines at Richmond, Missouri, as plaintiffs then and there were bound to do, and was of a value far in excess of the price mentioned in the contract and agreement made and entered into between plaintiffs and said defendant Coal Company, by reason whereof plaintiffs have been greatly damaged.

“Plaintiffs further state that from the time of the breach of the contract so made between plaintiffs and defendant Ray County Coal Company as aforesaid, to-wit, on November 20, 1916, until the expiration of said contract, to-wit, July 31, 1918, the average monthly output of defendant’s mines heretofore mentioned has been five thousand and five hundred (5500) tons of coal per month, which said coal and all of it plaintiffs were bound to deliver to defendant at the price of $1.80 per ton, according to the contract and agreement heretofore recited.

“That defendant, Ray County Coal Company, has wholly failed and refused to deliver unto plaintiffs said coal, or any part thereof, as it was lawfully bound to do; that said coal was of the reasonable cash market value at the time and place, when and where same should have been delivered unto plaintiffs, of the following sums, that is to say, during the month of December, 1916, three dollars and seventy-five cents ($3.75) per ton; January, 1917, three dollars and fifty cents ($3.50) per ton” (Here follows varying recited values for each month from February, 1917, to March 1918, both inclusive, the lowest being $2.07 per ton and the highest $4 per ton); “that the total value of said coal as aforesaid, which plaintiffs were entitled to have and receive from defendant, Ray County Coal Company, during the period aforesaid, according to the terms and conditions of the aforesaid contract and agreement, less the sum which plaintiffs were obligated by their contract to pay for the same, was one hundred five thousand, five hundred and forty-five ($105,545) dollars, in which sum plaintiffs have been damaged by reason of the failure and refusal of defendant, Ray County Coal Company, to keep and perform the terms of its contract so made with plaintiffs as aforesaid.

“Wherefore plaintiffs say that by reason of the premises they have been damaged in the total sum of one hundred and five thousand, five hundred and forty-five ($105,545) dollars* with interest at six per centum per annum, and for costs.”

“EXHIBIT ‘A’

“Ray County Coal Co.

“Mines Located Richmond, Mo.

“Kansas City, Missouri.

May 1, 1916.

“Martin & Hubbell,

“Kansas City, Missouri.

‘ ‘ Gentlemen:

‘ ‘ Confirming the conversation wherein we entered into a stipulated agreement, whereby the Ray County Coal Company is to furnish you from one hundred to three hundred tons per day, for the purpose of fulfilling railroad contracts entered into.

“It is agreed that this coal shall net the Ray Co. Coal Company $1.80 per ton, from this date until the contract ends, which will he July 31, 1918.

“Respectfully,

“F. H. "Wbrries,

“Secy. & Treas. Ray County Coal Co.”

Immediately, oh the same day, defendant filed a demurrer to the amended petition, which is as follows:

“Now on this day comes the Ray County Coal Company defendant in the above entitled cause, and demurs to the amended petition of plaintiffs herein, for the reason that the petition does not state facts sufficient to constitute a cause of action against the Ray County Coal Company.

“Defendant further demurs to the amended petition of plaintiffs for the reason that the alleged contract set forth in the petition of plaintiffs was a contract not to be performed within one year from the making thereof, and that said contract was oral and not in writing, nor was there any memorandum or note thereof in writing signed by the defendant, party to be charged, or by any other person lawfully authorized by defendant.”

Thereafter, but still on June 9, 1919, the court made an order dismissing-; plaintiff’s petition as follows:

“Now on this June 9th, 1919, this cause comes on for consideration upon the demurrer heretofore filed by the defendant. Comes the defendant by its counsel, Geo. "W. Crowley and Lavelock & Kirkpatrick; the plaintiff though thrice solemnly called comes not but makes default, and the court after hearing the presentation of said demurrer by defendant’s counsel is of the opinion and finds that said demurrer is well taken; that the facts and matters set forth in plaintiff’s petition do not constitute a cause of action in favor of plaintiffs and against the defendant.

“Wherefore, it is by the court ordered and adjudged that plaintiff take nothing* by virtue of his petition herein; that the same be dismissed; that the defendant go hence without day and recover of the plaintiffs its costs herein expended.”

From the judgment thus rendered against them, plaintiffs have sued out a writ of error from this court.

1. Plaintiffs assign as error the ruling of the circuit court that their amended petition did not state a cause of action and the sustaining by the court of defendant’s demurrer to the said petition. The gist of the argument of learned counsel for defendant in support of the action of the court is that the petition shows upon its face that the contract sued on is an oral agreement, for a period of more than two years, with no signed written memorandum thereof, and therefore in violation of the Statute of Frauds (Sec. 2783, R. S. 1909), a question which it is contended may be raised by demurrer; and that the contract is invalid for the reason that it is “vague, indefinite, uncertain, and without mutuality or consideration.” In opposition to this insistence plaintiffs argue in substance that the petition states facts constituting a valid contract under the Statute of Frauds, and that if defendant desired to urge the statute as a defense it could only do so by answer, and not by demurrer.

Directing our attention first to the sufficiency of the petition as stating a cause of action, we start with the unquestioned premise that under a general demurrer, such as is set forth in the first paragraph of the demurrer here, all facts properly pleaded in the petition, and all inferences of fact that may fairly and reasonably be drawn therefrom, must be taken as true. [American Brewing Co. v. St. Louis, 187 Mo. 367; Rodgers v. Insurance Co., 186 Mo. l. c. 255; Troll v. Third National Bank, 211 S. W. 545.] Referring to the amended petition before us we find alleged therein the following elements of the contract, to-wit: The parties (plaintiffs and defendant herein); the subject matter (100 to 300 tons of coal); the quantity (the entire output of defendant.’s mines, not exceeding 300 tons per day); the price ($1.80 per ton); the place of delivery (the usual place of delivery); the time of delivery (daily from May 1, 1916 to July 31, 1918); a partial performance of the contract (that from May until November 20, 1916, defendant kept and performed all the terms and conditions of the contract, delivered to plaintiffs the entire output of its mines, and received from plaintiffs the price agreed to be paid therefor); a breach of the contract (that after November 20, 1916, defendant wholly failed and refused to deliver to plaintiffs said coal or any part thereof); and the resultant damage to plaintiffs in the sum of $105,545. All of these elements seem well pleaded, none of the statements with respect thereto are vague or indeterminate and, as said supra, all such statements must be taken as true. Irrespective then of the questions of consideration and mutuality and of the contract being in compliance with the statute of frauds, we are accordingly of the opinion that the terms of the agreement as pleaded are definite and certain and embrace all the essentials of a valid contract of sale.

Passing next to the questions of consideration and mutuality of obligation, we perceive that the amended petition recites that plaintiffs agreed “to purchase of said corporation (defendant) a minimum of one hundred tons or a maximum of three hundred tons of bituminous coal per day ... at and for the agreed price of one dollar and eighty cents ($1.80) per ton;” that thereafter defendant executed and delivered to plaintiffs a written memorandum confirming the said agreement and that defendant “thereby bound itself to sell and did sell and deliver unto plaintiffs said coal according to the stipulations and to the effect as hereinbefore alleged;” that thereafter plaintiffs ‘ ‘ with the consent of defendant elected to take under and by virtue of said contract the maximum quantity of coal mentioned therein”; and that from May until November 20, 1916, defendant delivered to plaintiffs “the entire output of its said mines . . . and received therefor from plaintiffs the price agreed to be paid for said coal. ’ ’ Construing these averments, there is present an agreement on the part of plaintiffs to purchase a fixed quantity of coal at a stated and definite price. On the part of defendant there is a promise or agreement to sell and deliver the said coal, followed by an actual delivery of part thereof and receipt of payment therefor. Upon defendant rested the obligation to sell and deliver and córrela-' lively upon plaintiffs was imposed the duty to buy and make payment. The promises were mutual and reciprocal. By the weight of relevant authority the contract pleaded was not lacking in either consideration or mutuality. [Loudenback Fertilizer Co. v. Tennessee Phosphate Co., 121 Fed. 298; Grand Prairie Gravel Co. v. Wills Co., 188 S. W. 680; Rozier v. St. Louis & S. F. R. Co., 126 S. W. 532; Lima Locomotive Co. v. Steel Castings Co., 155 Fed. 77; Silver Mining Co. v. Smelting & Ref. Co., 16 Colo. 118; Ramey Lumber Co. v. Schroeder Lumber Co., 237 Fed. 39; Warren v. Coal Co., 200 Mo. App. 442; Baker v. Railway Co., 91 Mo. l. c. 157; Klein v. Johnson, 191 Mo. App. 453; Moss v. Green, 41 Mo. 390; Scriba v. Neely, 130 Mo. App. 258; Green v. Whaley, 271 Mo. l. c. 654; 13 Corpus Juris, 339, sec. 191.] And even though it may have been lacking in mutuality (which is contrary to our belief), part performance thereof, as is alleged, made it binding on both parties. [Louisville & Nashville Ry. Co. v. Coyle, 123 Ky. 854; Rozier v. St. Louis & S. F. R. Co., 126 S. W. (Mo. App.) l. c. 534; Herrick v. Wardwell, 58 Ohio St. 294.]

The questions of general sufficiency and of consideration and mutuality of the contract being disposed of, we proceed to the final inquiry as to the availability of the Statute of Frauds as a defense, when presented by way of a special demurrer, as set forth in the second paragraph of defendant’s demurrer herein. It is true, as is argued by counsel for defendant, that the amended petition initially declares upon an oral agreement, which is not to be fully performed within more than two years from the date thereof. It is equally true, as contended by plaintiffs, that the petition later recites that “As evidence of and in confirmation and ratification of said contract and oral agreement so set out hereinbefore, said defendant, Ray County Coal Company, through the agents then in charge of and managing their business, made, executed and delivered unto plaintiffs its written memorandum of agreement whereby said oral contract and agreement was in all things confirmed,” a copy of said memorandum being attached to the petition. But whether this further allegation and memorandum shows a sufficient compliance with the Statute of Frauds, it is unnecessary for us to determine, for the reason that the primary question, to be first answered, is whether defendant can raise the question by demurrer. It may be conceded as well settled that the defense of the statute must be specially pleaded or it will be waived. . [Gardner v. Armstrong, 31 Mo. 535; Rabsuhl v. Lack, 35 Mo. 316; Gordon v. Madden, 82 Mo. 193; Maybee v. Moore, 90 Mo. 340; Graff v. Foster, 67 Mo. 512.] But the function of a demurrer is limited. While, generally speaking, its office is to sweep away a defective pleading, by raising issues of law upon the facts stated, nevertheless, when a plaintiff has stated a contract (as here) the law presumes its validity, and if the defendant objects to it as being void for non-compliance with the Statute of Frauds, he must make that defense in his answer. It is not incumbent on the plaintiff to affirmatively show in his petition that the contract is without the Statute of Frauds. That it is within the statute is a matter of defense. [Mathews v. Wallace, 104 Mo. App. 96.] Thus in Sherwood v. Saxton, 63 Mo. 78, where a demurrer attacked a petition because it was not averred “that any note or memorandum” of a sale of land by a trustee under a deed of trust “was made in writing,” Wagneb, J., said, at page 84: “There is no merit in the point made in the demurrer in reference to the Statute of Frauds. When a plaintiff states a cause of action the law presumes its validity, and if it is objected that it is void by reason of there not being any writing to the transaction, that is a matter that must be set up in the answer as a defense.” (Italics ours). And so in Phillips v. Hardenburg, 181 Mo. 463, an appeal from a judgment sustaining a demurrer to plaintiff’s petition, Gantt, J., said, l. c. 473: “The petition alleged an agreement and if it was necessary that it should be in writing the presumption is that it was a valid one, and it was for the defendant to deny the agreement and insist on proof that it was in writing, or admit the agreement and plead the Statute of Frauds as a defense, but it is clear that a demurrer is not the way to obtain the benefit of the Statute of Frauds.” (Italics ours). Again in Martin v. Harrington, 174 Mo. App. l. c. 708, and Maybee v. Moore, 90 Mo. 340, has the rule been laid down that the statute must be taken advantage of by answer. The early case of Chambers v. Lecompte, 9 Mo. 575, relied upon by defendant, is distinguishable from the instant case for the reason that there it appeared upon the face of the bill of complaint that the contract was entirely verbal, it being expressly so alleged (l. c. 579), while here the petition avers that the oral agreement entered into was thereafter, on the same day, confirmed by a written memorandum, executed and delivered by defendant to plaintiffs, a copy thereof being filed with the petition.

II. Without passing upon the question as to whether or not plaintiffs’amended petition shows that the contract relied on is without the Statute of Frauds, we are clearly of the opinion, and so hold, that the petition otherwise stated a cause of action. That being true, defendant’s demurrer was not sustainable as to tbe first paragraph thereof. And, entertaining the view that the defense „ of the Statute of Frauds could not be invoked by demurrer, we hold that the demurrer should not have been sustained as to the second paragraph thereof. In view of such ruling it is unnecessary for us to determine the remaining point urged by plaintiffs, that the court erred in rendering final judgment against them on defendant’s demurrer.

For the reasons appearing herein, we therefore order that the judgment of the circuit court be reversed, that the cause be remanded with directions to the trial court to set aside the judgment rendered, to reinstate the cause upon its docket, and to overrule the demurrer of defendant in toto.

All concur.


source: Caselaw Access Project

author: JAMES T. BLAIR, J.

license: Public Domain

text:
    VIRGINIA A. RICHARDSON v. KANSAS CITY RAILWAYS COMPANY, Appellant.
    Division One,
    June 6, 1921,
    1. JUROR: Prejudice. Where the juror stated that he did not think the “city got a square deal” in the transaction some years previously in which the defendant railway company had obtained a franchise from the city, but his whole examination shows that he was not satisfied with the franchise agreement, but shows no more, such examination does not show such prejudice as to disqualify him in a personal injury case.
    2. -: -: Presumption. The question of the juror’s qualification is to be tried by the court, and not by the juror; but after the court has tried the question, the ruling on appeal is entitled to a presumption of correctness, which is overthrown only when the ruling is clearly against the evidence.
    3. -: -: Injury to Juror’s Wife. The mere bald showing by affidavit that the wife of one of the jurors, during the progress of the trial and two. days before the unanimous verdict against defendant street railway company in a personal injury case, was injured while a passenger on one of defendant’s cars, is not enough to justify an inference of hostility towards defendant. In such a situation, it is significant that at no time before the motion for a new trial was overruled did defendant inform the trial court of the character of the wife’s injury, whether the injury was a serious one or a mere scratch, and whether defendant admitted responsibility.
    4. PLEADING AND PROOF: Necessary Result of Alleged Injury: No Exception. Where the petition alleged that the injury plaintiff received resulted in “the impairment of her mental faculties’’ her testimony that her injury caused her to he affected with loss of memory is within the allegation. But whether it was or not. if no exception was saved to the refusal of the court to strike out the testimony, it is not reversible error on appeal.
    5. PLEADING: Specific Allegation: Instruction. Instructions must be within the pleadings, and an allegation of general negligence is restricted by specifications of particular negligence, and instructions, in such a case, must submit nothing outside the specific charges; and in this case, where an allegation of general negligence was followed by specifications of negligent acts, the instruction was within the rule, and the proof tended to support the specific charges.
    6. INSTRUCTION: Contributory Negligence. An instruction requiring the jury to find that at the time of plaintiff’s injury she “was seated in the automobile in question and that said truck was standing still on the track ahead of the street car” negatived the defense that the truck backed into the car, and did not ignore said defense.
    7. -: More Than The Law Requires. An instruction is not erroneous because it requires a finding that the law does not require. Where the instruction submitted the case on common law negligence, it is not erroneous because it conjunctively requires a finding pertinent to the humanitarian doctrine.
    8. EXCESSIVE VERDICT: $12,000. Plaintiff at the time of her injury was twenty-five years old, strong, healthy and rosy, and had been steadily employed in stores and shops; the truck in which she was sitting was struck heavily by a street car, and she was rendered unconscious; her hack, hip and leg suffered severe and extensive bruises and abrasions; one kidney was displaced four or five inches, and the uterus was retroverted and results in painful irritation of the bladder; her mental powers were somewhat affected, she has greatly lost weight, and has become thin, haggard and sallow; an operation may correct the conditions of the displaced organs, but unless so corrected the displacements are permanent. The verdict was for $20,000, and the trial court reduced it to $12,000. Held, that it is still too large by $2,000, and is accordingly reduced to $10,000 as a condition of affirmance.

      Appeal from Jackson Circuit Court —Hon. O. A. Lucas, > Judge.
    Affirmed (on condition).

      B. J. Higgins and Mont T. Prewitt for appellant.
    (1) The court erred in giving instruction numbered 1 requested by plaintiff. McManamee v. Railway, 135 Mo. 447; Northam v. Railway, 176 S. W. 229; State ex rel. Coal Co. v. Ellison, 270 Mo. 653; Kirkpatrick v. Railway, 211 Mo. 83; Degonia v. Railway, 224 Mo. 589; McGrath v. Railway/197 Mo. 105; Davidson v. Transit Co., 211 Mo. 361; Roscoe v. Railway, 202 Mo. 588; State ex rel. Natl. Newspaper Assn. v. Ellison, 176 S. W. 11; Hoadland v. Dunham, 186 S. W. 1148; Reyburn v. Railway, 187 Mo. 575; Evans v. Trenton, 112 Mo. 404; MeClanahan v. Railway, 147 Mo. App. 411; Knapp v. Dunham, 195 S. W. 1063; Kamoos v. Railway, 202 S. W. 436; Haines v. Railway, 203 S. ~W. 631. (2) The court erred in refusing to discharge venireman George Hogue, who was not a qualified juror. Vessels v. Light Co., 219 S. W. 85; Theobald v. Transit Co., 191 Mo. 417; Carroll v. United Rys., 157 Mo. App., 264; Gibney v. Transit Co., 204 Mo. 721; Heidbrink v. United Rys., 133 Mo. App. 42; Billmeyer v. Transit Co., 108 Mo. App. 9. (3) The court erred in failing and refusing to grant defendant a new trial for the reason that juror George R. Barker became a disqualified juror during the trial of this cause. Vessels v. Light Co., 219 S. W. 85; Theobald v. Transit Co., 191 Mo. 417; Carroll v. United Rys., 157 Mo. App. 264; Gibney v. Transit Co., 204 Mo. 721; Heidbrink v. United Rys., 133 Mo. App. 42 ; Billmeyer v. Transit Co., 108 Mo. App. 9. (4) The court erred in permitting incompetent testimony concerning the alleged mental condition of plaintiff. Hall v. Coal Co., 260 Mo. 373; Shafer v. Dunham, 192 Mo. App. 502; Fink v. United Rys., 219 S. W. 680. (5) The court erred in refusing to sustain defendant’s motion for a new trial for all the reasons heretofore assigned and because the verdict is excessive. Eigg v. C. B. & Q. Ey., 212 S. W. 879; Hulse v. St. Joseph Ey. Co., 214 S. W. 155; Dominick v. Mining Co., 255 Mo. 467; Stolze v. Transit Co., 188 Mo. 581; Norris v. Eailway, 239 Mo. 704; Lyons v. St. Ey., 253 Mo. 163; Bragg v. St. Ey., 192 Mo. 366; Willits v. C. B. & Q. Ey., 221 S. W. 65.

      Harry G. Kyle and Horace G. Pope for respondent.
    (1) The court did not err in giving Instruction No. 1 requested by plaintiff. Kame v. Eailway, 254 Mo. 175; Lange v. Eailway, 208 Mo. 475; Bank v. Bobinson, 185 Mo. App. 582; Newton v. Harvey, 202 S. W. 249; Woods v. Eailroad, 188 Mo. 229; Aqua v. Contracting Co., 203 S. W. 483; Boesel v. Wells Fargo, 260 Mo. 474; Lawbaugh v. Min. Co., 202 S. W. 619; Meily v. Eailroad, 215 Mo. 587; Tranbarger v. Eailroad, 250 Mo. 59; De Bousse v. West, 200 S. W. 786; Barnard v. Coal Co., 189 Mo. App. 423. (2) The court did not err in refusing to discharge venireman George Hogue, who was a qualified juror. McManama v. Railroad, 175 Mo. App. 43; Tawney v. Rys., 262 Mo. 612; State v. Basco, 239 Mo. 535, syl. 6; Oakley v. Richards, 204 S. W. 507; Shore v. Dunham, 178 S. W. 903; Albert v. Eailway, 192 Mo. App. 674; State v. Herring, 188 S. W. 172; Joyce v. Eailroad, 219 Mo. 344; Gardner v. Eailway, 177 S. W. 737. (3) The court did not err in failing and refusing to grant defendant a new trial because of defendant’s claim that juror George E. Barker became a disqualified juror during the trial of this cause. Shafer v. Railways, 201 S. W. 614; Partello v. Eailroad, 240 Mo. 133. (4) The court did not permit incompetent testimony to be given concerning the mental condition of the plaintiff. Martin v. Railways, 204 S. W. 589. (5) The court did not err in reftising to grant defendant a new trial because of its claim that the verdict is excessive. Perrette v. Kansas City, 162 Mo. 238; Hays v. Railway, 183 Mo. App. 608; Peaslee v. Transfer Co., 120 Minn. 347; ITurst v. Railroad, 219 S. W. 566; Highfill v. Independence, 189 S. W. 801; Meeker v. Power Co., 216 S. W. 923; Wagner v. Construction Co., 220 S. W. 890.
   JAMES T. BLAIR, J.

Respondent recovered judgment for damages for injuries she alleges she received when a truck in which she was seated was brought into collision with one of appellant’s cars, and this appeal followed.

On July 4,1916, a picnic party of eighteen young men and women of Kansas City were on their way to Fair-mount Park. They were being conveyed in a motor truck, and had proceeded to a point on Washington Park Boulevard, a short distance east of Cambridge Avenue, when they reached the tracks of the St. Louis & San Francisco Railway Company, which there cross the avenue about at right angles. The evidence tended to show that a long freight train was then passing over the crossing; the truck was stopped upon appellant’s east bound track a few feet west of the crossing, and stood there facing east toward the passing train for three or four minutes; one of appellant’s cars approached from the west at a speed of twelve or fifteen miles an hour; when the motorman was more than four hundred feet distant from the truck he saw it upon the track upon which his car was proceeding ; the back of the truck was toward the street car, and respondent was seated with her back toward the car; the track was almost level and was dry, and the car could have been stopped within a distance of thirty or forty feet; there was a safety stop for east-bound cars,-near the place where the truck was standing and between it and the point from which the motorman first saw it; the motorman sounded no signal or warning, did not check his car at all, but ran it at undiminished speed past the safety stop and against the truck, and thereby seriously injured respondent. There was a verdict for $20,000. The trial court required a remittitur of $8000, and judgment was entered for $12,000. Appellant contends "the court erred (1) in refusing to sustain a challenge for cause to juror Hogue; (2) in refusing to discharge the jury because juror Barker, appellant contends, became disqualified during the trial; (3) in admitting evidence concerning respondent’s mental condition; (4) in giving and refusing instructions; and (5) in permitting judgment for an excessive sum.

1. On the voir dire examinations of the panel, George Hogue, in answer to a question of appellant’s counsel, stated he did not think the “city got a square deal” on the “franchise proposition.” The reference was to a transaction in 1914 between the city and appellant which concerned appellant’s franchise. Hogue said he had no prejudice against appellant at the time of the trial in June, 1918; that he could not say he had a prejudice against appellant, but still thought the city did not “get a square deal” in 1914. In answer to questions he said, in effect, that his view of the franchise transaction would have nothing to do with his attitude toward appellant in this case; that he “would take the evidence,” and that the question concerning appellant’s contract rights for operation would not have anything to do with a claim for injuries inflicted in the operation of the road. Counsel argue Hogue admitted he had an existing prejudice against the company.. Into the questions he propounded, counsel quite skillfully wove implications and assumptions of such a prejudice. The juror ¿voided these as best he could, and his answers show he did not intend to adopt them. He distinguished between a “prejudice” and his opinion concerning the matter of the 1914 franchise. His whole examination shows he was not satisfied with that agreement, but, properly understood, shows no more.

It is true that the question concerning a juror’s qualification is to be tried by the court and not by the juror (Theobald v. Transit Co., 191 Mo. l. c. 417), but it is also true that after the court has tried it the ruling comes here accompanied by a presumption of correctness which is overthrown only when the record shows the ruling was clearly against the evidence. [Theobald v. Transit Co., supra, and cases cited.] The record does not convict the juror of prejudice. He, in effect, denied the assumption by counsel that he entertained such a feeling. The character of the matter with respect to which the juror did not approve appellant’s course was not, in its nature, so far as the record shows, such as to prove prejudice in 1918 and disprove the juror’s denial of prejudice. Hogue was apparently candid with court and counsel. He recognized the irrelevancy of the franchise question to the issue in this case. He thought it “had nothing to do with it” and that the evidence should govern. He said the evidence would govern him. We do not think the record shows the trial court erred in overruling the challenge for cause.-

II. The case went to trial on June 5,1918. .The taking of evidence was finished during the afternoon of Monday, June 10, 1918. The instructions were then given and the arguments followed. Thereafter, but at some time on June 10th, a unanimous verdict was returned. In support of its motion for new trial appellant filed tfie affidavit of one of its claim-agents in which it was stated that on June 8, 1918, the wife of one of the jurors, George R. Barker, was injured while riding with her husband as a passenger on one of appellant’s cars. Appellant also filed the affidavit of Meyers in which Meyers stated that on June 14, 1918, he presented to Barker for his signature a form of affidavit; that in this form it was set out that Barker was a foreman of the jury in this case and that Barker and his wife were on one of appellant’s cars on the evening of June 8, 1918, and Mrs. Barker was injured while riding as a passenger thereon. It was also set out in this form that Barker was present when his wife was injured and that it “caused him to be sore and peeved under the circumstances,” and that a claim for the injury to-Mrs. Barker had then (June 14) been made. Meyers, in his affidavit, stated that Barker refused to sign the paper he presented to him, but “admitted the truth of the unsigned affidavit.” Eespondent filed Barker’s affidavit. In it he stated that some one representing appellant presented a form of affidavit for his signature, but that he refused to sign it because it was not true in all respects; denied that he admitted to Meyers the truth of all the statements in the form he refused to sign; admitted his wife received an injury to one of her arms while he and she were passengers on one of appellant’s cars on June 8, 1918, but stated that neither he nor his wife had made' claim against appellant, though claim-agents of appellant had called and endeavored to settle; denied that he became “sore and peeved” against appellant; and “affiant further states that said accident to his wife did not prejudice him against said defendant ... in the trial of this cause, and that said accident to his wife had no effect whatever on his deliberations as a juror in the cause or on his verdict so given in favor of plaintiff in said cause, and that he now has no prejudice against defendant by reason thereof; and that said accident had no bearing whatever on his verdict in the above cause, but that said verdict was given by affiant because he believed it true and just.”

Though the injury to Mrs. Barker, whatever it was, occurred on the evening of June 8, 1918, and the verdict was not returned until nearly forty-eight hours later, no motion to discharge the jury was made before verdict. The ruling on the point will not be put on that ground, however. With Barker’s affidavit on file no additional evidence, documentary or other, was offered to show that either he or Mrs. Barker had made any claim against the company. From this and the affidavits and the date of the order overruling the motion for new trial it appears, therefore, that at least as late as July 13, 1918, neither Barker nor his wife had attached enough importance to Mrs. Barker’s injury to have made claim for damages. That fact is of no great consequence, but it is not improper to mention it. The significant thing is that at no time did appellant inform the trial court of the character of Mrs. Barker’s injury. It may well be that there are injuries the nature of which is such that a feeling of hostility toward the person or agency which inflicted them would be fairly inferable. We do not think that a bald showing that Mrs. Barker was injured in some way “while riding as a passenger” discloses enough to justify such an inference of hostility toward appellant. Besides the failure to show whether the injury was a serious one or a mere scratch, there was also a failure to show appellant’s fault or responsibility. It is quite possible for one “riding as a passenger” to receive an injury for which the carrier is in no wise responsible. It was incumbent upon appellant, upon this ground of its motion, to convince the trial court that the incident upon which it r.elied so disqualified Barker that a verdict in which he participated ought not to stand. It was essential that appellant show that appellant had so injured Barker’s wife that prejudice on his part against • appellant resulted of such character that the-verdict was invalidated thereby. Appellant did not even admit responsibility. Perhaps, it had in mind the doctrine of res ipsa loquitur. We are of the opinion that the circumstances called for a. frank exposition of the facts and that the guarded, careful and successful effort to avoid acceptance of responsibility for Mrs. Barker’s injury, while perhaps commendable as protective of appellant’s rights as against Mrs. Barker, falls short of showing the facts necessary to sustain this ground of the motion for new trial. The showing made does not convict the trial court of error in its ruling.

III. Complaint is made that respondent’s testimony that her injury caused her to be affected with loss of memory was not within the pleadings. The petition alleged the injury respondent received resulted in “the impairment of her mental faculties.” Besides this no exception was taken to the action of the trial court in connection with appellant’s mo-tin to strike out the testimony.

IV. Complaint is made of the principal instruction given at respondent’s instance. It is said (1) that the charge of negligence in the petition is specific and that the instruction did not confine respondent’s . . . . , ,. right to recover to the specific negligence charged; and (2) the instruction did not “take into consideration” the defense that the injury was the result of the truck hacking into the car.

(1) The petition first charged that the injury to respondent was caused hy the negligence of defendant. This general allegation was followed by numerous specifications of negligent things alleged to have been done. One specification was that appellant’s employeeg “failed and neglected to run and operate said car in a manner that said car would be under such control that it would not be run into and against said automobile when they saw, or by the exercise of reasonable care could have seen, said automobile truck ahead of said car on said track and street. ’ ’ There was evidence tending to support this allegation. It is a specification of negligence and was pleaded as such. The instruction required the jury, before finding for respondent, to find (1) that she was seated in an automobile truck (2) over which she had no control and (3) which was standing still upon appellant’s track ahead of the car, and (4) that respondent was in danger of being struck if the ear did not stop and continued on its course; (5) that said street car was so negligently operated, managed or controlled by the motorman that it was negligently caused to be run into and strike the truck; (6) that the motorman negligently ran the car against the truck when he saw or in the exercise of ordinary care could have seen the truck on the track ahead of the car, and by the exercise of ordinary care could have stopped the car and have avoided striking the truck. These various findings were all required before a verdict for respondent was authorized by the instruction. The motorman was offered by appellant and testified he saw the car when he was more than 400 feet distant from the truck. It is true that instructions must be within the pleadings; that an allegation of general negligence is restricted by specifications of particular negligence; and that instructions, in such a case, must submit nothing outside the specific charges. In this case among the specifications of negligence which follow the general charge is that already quoted. That this allegation was in itself specific and not a mere general charge of negligence is shown by the decisions cited by respondent. [Davidson v. Transit Co., 211 Mo. l. c. 361; Beier v. Transit Co., 197 Mo. l. c. 232, 233; Thompson v. Livery Co., 214 Mo. l. c. 490, et seq.] This allegation was fairly submitted to the jury by the assailed instruction.

(2) There was no plea of contributoy negligence. There is no claim there was any evidence of it. Nevertheless the instruction required the jury to find, before finding for respondent that she “at the said time and place acted as a reasonably prudent person would have acted under the same or similar circumstances for her own safety.” The instruction further required the jury to find, before finding for respondent, that “at the time and place in question plaintiff was seated in the automobile truck in question and that said truck was standing still on the track ahead of the street car,” etc. That finding, if made, negatived the defense that the truck backed into the car, and the instruction did not authorize a verdict for respondent until that finding was made by the jury. If the jury found the car was not standing still it was not authorized by the instruction to find for respondent at all. The objection is not well taken. Further, tha’t there could be no doubt in the jury’s mind, it was instructed, at appellant’s instance, that if the truck backed into the car too late for the inotorman to discover the consequent peril, the verdict should be for appellant. Respondent’s instruction was even broader in this respect than was that asked by appellant. The instruction is not open to the objection made.

(3) It is said the instruction omitted to require findings that respondent was oblivious of her danger and that appellant’s employees saw or could have seen that to be her condition. If such a finding is required on facts like those in this case in a submission on the humanitarian doctrine, still the instruction is not vulnerable to the criticism. It submitted the case on common law negligence. It conjunctively required a finding pertinent to the humanitarian doctrine, but this was merely one requirement more than was necessary.

(4) The refusal of one instruction asked by appellant with respect to the burden of proof is.justified by the fact that other instructions given at appellant’s instance covered this feature.

V. The verdict was for $20,000. The trial court required respondent to remit $8000, and then rendered judgment for $12,000. It is insisted this sum is excessive. The evidence showed that at the time respondent was tmrt s^e was twenty-five years old. She was ‘ ‘ strong, healthy and rosy. ’ ’ Her weight was one hundred and forty pounds. She had never been sick except an occasional “cold” or the like. Her hearing had at a time three or four years previous been slightly affected, probably from her service five or more years before in a rural telephone exchange, but this had yielded to treatment and no longer troubled her. All the organs of her body functioned normally. She lived with her mother and had been employed in stores and shops in Kansas City for about four years. She was steadily employed and lost no time by reason of any physical ailment. She was hurt on July 4,1916. The truck in which she was sitting was struck heavily by the street car and she was thrown from her seat and rendered unconscious. Emergency treatment was given her. Her back, hip and leg suffered bruises and abrasions of considerable severity and extent, and it was evident she had received a very severe shock. One of her kidneys was displaced to such an extent that it had' four or five inches too much movement. In the course of two years this was reduced to about three inches. The uterus was retroverted, so that the cervix pressed against the bladder and the body against the rectum. The ovaries were inflamed and painful. The testimony was that the effect of the displacement of the kidney was to interfere with the regularity and efficiency of its performance of its functions and to cause pain. The abnormal position of the uterus was said to result in irritation of the bladder and tend to affect control of urine and that its position would be painful. The evidence was that respondent suffered pain much of the time; that she was unable to sleep regularly; that she was very nervous; poor appetite; suffered from frequent headaches; that she was afflicted with constipation and was drowsy; that her hearing and eyesight were somewhat affected, and she had suffered some impairment of her memory; that her mental powers had been somewhat affected; her weight at the time of the trial was 102 pounds, and she was no longer healthy in appearance but had become thin, haggard and sallow and appeared to have grown disproportionately older. She was kept at home in Kansas City until August 10, 1916, when she was taken to her brother’s home at California. There she remained in bed continuously for two and one half or three months. During the next eight months she was able to sit up part of the time, but was confined to her bed a great deal. In November, 1917, she returned to Kansas City. She attempted to work at two or three places, but worked only a relatively short time. The evidence indicates that an operation may correct the position of the displaced organs. Unless so corrected the conditions due to their displacement are permanent.

After a consideration of the facts and of the cases cited the court is of the opinion that the judgment is still excessive.- It should he reduced to $10,000. Therefore, if respondent will, within ten days, remit the sum of $2,000, the judgment will stand affirmed, as of the date of its original entry, for $10,000; otherwise the judgment will he reversed and the cause remanded.

All concur.


text:
    GEORGE ANDRE, JR., v. MINE ANDRE et al.; LOUELLA ANDRE, Appellant.
    Division One,
    June 6, 1921.
    1. WILL: Construction: Equity Jurisdiction. Circuit courts, as courts of equity, upon application of devisees claiming merely legal estates, have jurisdiction to construe doubtful provisions of a will, whether they relate to real estate or personal property.
    2. -: -: Mistake of Draftsman: Reformation. A court of equity has jurisdiction to reform a will so as to correct mistakes of the draftsman which are apparent on the face of the instrument or arise out of a latent ambiguity. [Distinguishing Goode v. Goode, 22 Mo. 518.]
    3. -:-: Quieting Title: Cause of Action. A petition which, in its first count, pleads a will in full, alleges that it has been probated, sets out the land actually owned by testator, indicates specifically wherein its provisions disposing of the land owned and devised are uncertain and conflicting, and suggesting a construction which should prevail, and, in the second count, pleads the ownership of the land attempted to be devised to plaintiff, alleges the assertion of claims adverse thereto, asks the court to ascertain and determine the interests of the parties and prays a decree quieting title in plaintiff, states a cause of action in both counts.
    4. •- — •: Record: Recital in Bill of Exceptions. A recital in the bill of exceptions that indorsed on the will “offered and introduced in evidence” appears a certificate, under seal, signed by the judge and ex offleio clerk, certifying that “the foregoing and last will and testament of Henry Andre, deceased, together with the proof and certificate of probate thereof, were duly recorded in my office,” etc., imports absolute verity, and negatives any contention that no certificate showing that the will had been recorded in the office of the clerk of the probate court was offered in evidence, and also -negatives any contention that the. court erred in admitting said will in evidence.
    5. -: Probate: By Judge in Vacation: Confirmation. A will to which is attached a certificate by the “judge and ex officio clerk” of the probate court in which “I do declare and adjudge said instrument of writing to be the last will and testament of Henry Andre, deceased, late of Daviess County, and the same is therefore admitted to probate and ordered to be recorded,” being proved and admitted to probate by the judge himself, is, under the statute (Sec. 543, R. S. 1919), admissible in evidence, although the record does not disclose that the judgment of probate thus rendered in vacation was confirmed in term time.
    6. PROOF OF TITLE: Common Source: Prior Plats and Deeds. Where both sides claim title through the testator as the common source, and defendants merely deny plaintiff’s title and make no effort to show a better title or another source, it is not incumbent upon plaintiff to go back of the common source, but any irregularities in plats, documents or conveyances prior to such common source are immaterial.
    7. WILL; Testimony of Scrivener: Harmless Error. The testimony of the scrivener as to the understanding and intention of the testator is inadmissible; but where two other witnesses who were present when the will was drawn testified, even more explicitly than did the scrivener, as to the declarations made by the testator relative to the manner in which he desired his land to be divided, and their testimony is substantial to support the decree of the trial court correcting the descriptions to conform to the testator's intention, the admission of the scrivener’s testimony was harmless, and does not require a reversal.
    Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.
    Affirmed.

      W. W. Davis and Nat G. Grusen for appellant.
    (1) A court of equity lias no jurisdiction to reform a will on account of a mistake of tie draftsman. Goode v. Goode, 22 Mo. 518; 34 Cyc. 924, sec 3. (2) The admission of the testimony of witness French as to the intention and declarations of the testator were inadmissible over the objections of the defendant. 40 Cyc. 1436. (3) Only an equitable title can pass from the United States Government by an entry of public lands; the fee only passes by patent. 32 Cyc. 1029; Carman v. Johnson, 20 Mo. 108; Mosher v. Bacon, 229 Mo. 350; Wilcox v. Phillips, 199 Mo. 297; Gibson v. Chotean, 13 Wall. 92. (4) Having alleged that he was “the owner in fee simple,” plaintiff has limited his proof to a naked legal title and cannot show an equitable title in support of that allegation. Stewart v. Land Co., 200 Mo. 281. (5) Suits brought to ascertain and determine the title under Sec. 2535, R. S. 1909, are similar in nature to ejectment.suits. Machine Works v. Bowers, 200 Mo. 235; Graton v. Land & Lumber Co., 189 Mo. 337; Griffin v. Nicholas, 224 Mo. 330. Plaintiff must recover, if at all, on the strength of his own title, and not because of any weakness or want of title in the defendant. Large v. Fisher, 49 Mo. 307; Funkhouser v. Peck, 67 Mo. 19; Seimers v. Schrader, 14 Mo. App. 346; Creech v. Childers, 156 Mo. 338; Burn-ham Heirs v. Ritt, 132 Mo. 468; Marvin v. Elliott, 99 Mo. 616; Ratliff v. Graves, 132 Mo. 468; West v. Bretell, 115 Mo. 653; Mather v. Walsh, 107 Mo. 121; Foster v. Evans, 51 Mo. 39; Horwood v. Tracy, 118 Mo. 631. (6) Plaintiff must show a complete chain of title from the government to himself or the admitted common source of title, and the conveyances constituting the chain must each be sufficient to convey a legal title, or he must show such possession as to constitute a legal title. 10 Am. & Eng. Ency. Law (2 Ed.), 484, subd. 3; Finley v. Babb, 144 Mo. 403; Dollarhide v. Mabary, 125 Mo. 197; Harvey v. Anderson, 129 Mo. 206; Robinson v. Clagett,. 149 Mo. 153; 32 Cyc. 1329. Where plaintiff seeks to recover on paper or record title he must show regular chain of title from Government. 15 Cyc. p. 36, note 47; Harvey v. Anderson, 129 Mo. 208. (7) A will not established as such by the probate court or other court having jurisdiction, is not admissible as evidence. Creasy v. Alberson, 43 Mo. 13; Smith v. Estes, 72 Mo. 310; Barnard v. Bate-man, 76 Mo. 414; Snuffer v.' Howerton, 124 Mo. 637; Parris v. Burchard, 242 Mo. 9. (8) A court of equity has no jurisdiction to construe a will which affects only real estate. 4Q Cyc. pp. 1838 to 1840. Where a will is definite and certain and not ambiguous, no outside or extraneous evidence is admissible; it must be interpreted from the language of the will, without the aid of such extraneous evidence. 40 Cyc. 1427; Garth v. Garth, 130 Mo. 462; .In re McVeigh’s Estate, 181-Mo. App. 566; Heaton v. Dickson, 153 Mo. App. 312. Where the intention of the testator is expressed in the will in clear and unequivocal language there is no need for judicial construction of interpretation. 40 Cyc. 1382.

      Dudley, Selby é Br melon for respondent.
    (1) The evidence discloses that Henry Andre had owned and lived on this land for a great many years; that it was the only land he owned; that it had been his homestead for a long time and that the plaintiff and all the defendants claim under him, so that the evidence shows him to be the common source of title. Under this state of facts everything connected with the title prior to Henry Andre, the common source, is immaterial, both in ejectment and suits to quiet title. Stewart v. Lead Belt L. Co., 200 Mo. 291; Harrison Machine Works v. Bowérs, 200 Mo. 235; Brown v. Brown, 45 Mo. 415; Fellows.v. Wise, 49 Mo. 352; Ebersole v. Rankin, 102 Mo.' 498; Finch v. Ullman, 105 Mo. 263; Graton v. Land & Lumber Co., 189 Mo. 335; Gage v. Cantwell, 191 Mo. 708. (2) The will on its face calls for extrinsic evidence that the ambiguity may be removed. It is the well established rule in this State that extrinsic and parol evidence is always admissible to show what land a .testator owned at the time of making his will and at his death, and it is presumed that he intended to devise his own land and not that of another. Board of Trustees v. May, 201 Mo. 367; Thompson v. Thompson, 115 Mo. 67. Where it is clear on the face of the will that the testator has not accurately or completely expressed his meaning by the words he has employed, and it was also apparent what words or their substance have been omitted, these words may be supplied to effectuate the intention as collected .from the context. Thompson v. Thompson, 115 Mo. 68; 1 Jarman on Wills (6 Ed.), 487; 6 Waits, Actions & Defenses, 382-383; Patch v. White, 117 U. S. 227, 29 L. Ed. 860. (3) The ambiguity is apparent on the face of the will, and the many questions thus arising’ are of such a character that the rule is universal that the ambiguity may he removed by extrinsic evidence. Board of Trustees v. May, 201 Mo. 368; In re Estate of Boeck, 160 Wis. 577, L. R. A. 1915E, p. 1008; McMahan v. Hubbard, 217 Mo. 624; ÍMyher v. Myher, 224 Mo. 631. It is presumed the testator meant to dispose of his whole estate and not to die intesstate as to any part of it? To prevent the estate passing partly by will and partly by descent, words may be supplied, transposed or rejected, and where this can be done descriptions will be so corrected and interpreted as to include the whole property. McMahan v. Hubbard, 217 Mo. 624; Robards v. Brown, 167 M.o. 447; Willard v. Darrah, 168 Mo. 670; Whitcomb v. Rodman, 156 111. 116; Hurst v. Yon DeYeld, 158 Mo. 248; Watson v. Watson, 110 Mo. 171; Simmons v. Cabanne, 177 Mo. 336; Meiners v. Meiners, 179 Mo. 614; Grace v. Perry, 197 Mo. 560; Thompson v. Thompson, 115 Mo. 67; Bryant v. Garrison, 150 Mo. 668; Presnell v. Headley, 141 Mo. 194.
   ELDER, J.

This is a proceeding to construe the will of Henry Andre, deceased, and to determine and quiet title to twenty acres of land claimed by plaintiff as devisee under the said will.

The petition is in two counts. The first count thereof alleges that Henry Andre died in March, 1906, leaving surviving him his wife, Mine Andre (defendant herein); four children, to-wit, Byrdia L. Majors, Mary L. MeKeag and Delia Brown (defendants herein), and George Andre, Jr. (plaintiff and respondent herein); four grand-children, to-wit, Cora Milliner, Charles Wells, Ida Tatum and Clara Taylor (defendants herein), being the only children and heirs of a deceased daughter, Lucy Wells; and Louella Andre (defendant and appellant herein), the sole child and heir of a deceased son, Charles H. Andre. Proceeding, the petition alleges that at the time of the death of said Henry Andre he was seized and possessed of the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of Section 17, Township 59 of Range 26 in Daviess County, Missouri, comprising eighty acres, and that he owned no other land; that on February 28, 1906, he had made a will, which was duly proved and admitted to probate in the Probate Court of Daviess County on May 14, 1906, the same being as follows:

“I, Henry Andre, of Jackson Township, County of Daviess, and State of Missouri, being of sound mind and memory, do make publish and declare this to be my last will and testament, to-wit:

“First, all my just debts and funeral expenses shall be first fully paid.

“Second, I give devise and bequeath all of the north half of the southeast quarter Section Seventeen, Township Fifty-nine, Range Twenty-six, 20 acres to my son, George Andre, Jr.

“Third, I give devise and bequeath to Byrdia L. Majors all of the south one half of the southeast quarter of Section Seventeen (17) Township (59) of Range Twenty-six (26).

“Fourth, I give, devise and bequeath to my daughter, Mary L. MeKeag all of the east half 20 acres, of the northeast quarter of the southeast quarter of Section No. Seventeen (17) Township No. Fifty-nine (59) Range Twenty-six, (26).

“Fifth, I give, devise and bequeath to my daughter, Delia Brown, all of the west half, 20 acres of the north' east quarter of the southeast quarter of Section Seventeen (17), Township Fifty-nine (59) of Eange Twenty-six (26).

‘ ‘ Sixth, I give, devise and bequeath to my son, Charlie H. Andre’s heirs five dollars.

“Seventh. I give, devise and bequeath to my daughter Lucy E. Well’s heirs one dollar each.

“Seventh, I give and bequeath to my beloved wife Mine Andre, all of the aforesaid real estate during her lifetime.

“All of the above land is in Jackson Township, Daviess County, State of Missouri.

“In Witness Whereof, I have hereunto set my hand and seal this 28th day of Feb. A. D. 1906.”

The petition further alleges that the said will “is so vague, uncertain and indefinite that it is impossible for the various legatees thereunder to determine what, if any, real estate they take;” that the terms thereof are “so conflicting that it is impossible to reconcile the provisions thereof with the property owned by the deceased at the time of his death,” in the following particulars, to-wit: That under the will plaintiff, George Andre, Jr., is devised eighty acres (which is called twenty acres), the west one-half of which eighty acres had never been owned by the testator, but in truth and fact belonged to one John W. Burge; that the land devised to Byrdia L. Majors had never been owned by the testator, but in fact belonged to one E. W. Burge; that the twenty acres devised respectively to Mary L. MeICeag and Delia Brown was part of the same land devised to plaintiff George Andre, Jr.; that the south forty acres of land actually owned by the testator was devised to three different children, while the north forty acres actually owned by him was not devised at all; that a latent ambiguity is manifest in the said will, which will require the aid of outside evidence to remove; that the said will should he construed as devising to plaintiff the north half of the southeast quarter of the northeast quarter of the said Section 17, to defendant Byrdia L. Majors the south half of the southeast quarter of the northeast quarter of said section, to defendant Mary L. McKeag the east half of the northeast quarter of the southeast quarter of said section, and to defendant Delia Brown the west half of the northeast quarter of the southeast quarter of said section. The count closes with a prayer for construction of the will accordingly.

The second count alleges that plaintiff is the owner in fee simple of the north half of the southeast quarter of the northeast quarter of the said Section 17, but that defendant Mine Andre is entitled to a life estate therein; that defendants each claim and assert some title, estate or interest in the said land, which is adverse and prejudicial to the title of plaintiff; wherefore it is prayed that the court “try, ascertain and determine the estates, title and interests of the plaintiff and of the defendants, and each of them of, in and to the said real estate, and by its decree to adjudge, determine, settle, quiet and define the respective rights, titles, interests and estates of the plaintiff and defendants to said real property.”

All of the defendants except Carrie A. Barner and Louella Andre, though served personally or by publication, made default. Defendant Carrie A. Barner filed a disclaimer. Defendant Louella Andre, having first filed a demurrer, which was overruled, then answered by a general denial.

The record shows that a jury was waived by both parties and trial was had before Honorable Arch B. Davis, Judge of the Circuit Court for Daviess County. Defendants offered no evidence, but at the beginning of the trial objected to the introduction of any evidence upon the ground that the petition did not state facts sufficient to constitute a cause of action. This objection was overruled by the court.

Plaintiff, to sustain the issues on his part, introduced in evidence a plat book of original entries and several deeds tending to prove the acquisition by Henry Andre of the S. E. % of the N. E. % and the N. E. % of the S. E. YL °f Sec. 17, Tp. 59, R. 26, comprising in all 80 acres.

Mrs. Mine Andre, widow of Henry Andre, testified as to the relationship to the said Andre of the various parties to the suit, as to the ownership and possession by the deceased of the land acquired as above mentioned, and as to the ownership by him at the time of his death of no other land.

L. B. French, farmer and justice of the peace, 72 years of age, testified that he wrote the will of the deceased, at the latter’s home and under his direction; that he had had “very little” experience in drawing wills, “I believe this is the third one,” but that he had written several deeds; that he did not have much education; tnai he thought Henry Andre was “an average enlightened man;” that the conversation of Mr. Andre sounded like he was a German, as he spoke brokenly.

“Q. When you got there did Mr. Andre tell you what he wanted you to write in the will as to his property? A. Yes, sir.

‘‘Q. What, if anything, did he tell you about what you should write in the will about Charlie Andre ?

“Objection by counsel for defendants — objection overruled — exception saved.

“A. He said he would give Charlie Andre’s daughter $5.

“Q. What, if anything, did he say about the north 20 acres of land? Objection — overruled—exception

saved.

“A. He said to give that to his son George.

“Q. How did he say that, tell the court as near as you can the words he used and the direction he gave you?

Objection — overruled—exception saved.

“A. He first told me that his wife should have the use of the place as long as she lived and at her death George got the north twenty.

££Q. Who got the south twenty of that? A. I believe Birdie Andre.

££Q. That is Birdie Majors? A. Yes, sir.

11Q. What did he tell you to do with the south forty ?

A. He divided it up the same way, but I can’t recollect how he named it out.

££Q. Who, if anybody, did he say to give the west twenty of the south forty acres to? A. I think to Delia Brown.

££Q. Do you remember who he said to give the east twenty of the south forty to? A. I believe to his daughter, Mary McKeag.

££Q. How did you get the-description of these various twenty acres of land that you wrote in the will? A. We had the deed there and George Andre was calling it off part of the time and I was part of the time.

££Q. Do you remember whether he called to you the description of George’s land or not or how you got the description of the north twenty of the north forty? A. Got it from the deed.

££Q. Were you or were you not using the deeds by which the land was conveyed to him as a model and trying to make the description according to the deeds? A. Yes, sir.

££Q. Do you know whether or not you did write it then as it was in the deed or not? A. If I made a mistake I done it ignorantly; I didn’t know it.”

R. W. Burge, who lived a mile from Henry Andre’s farm, testified that the deceased had owned and lived on the N. E. % of the S. E. 14 and the S. E. % of the N. E. % of Section 17, and had owned no other land; that for fifteen years he (the witness) had owned the eighty acres described as the S. % of the S. E. % of Section 17, adjoining the Andre land on the south; that for thirty years his father, J. W. Burge, had owned the forty acres lying immediately west of the Andre land, which forty acres was described as the N. W. % of the S. E. % of Section 17.

Farley Burge, Harry Burge and Andrew Miller testified substantially to the same effect as did R. W. Burge. Andrew Miller further testified that Henry Andre was of German ancestry, spoke English brokenly, but could read and write English; that he (the witness) was present when Squire French wrote the will of Andre.

“Q. ’Did you hear the direction that Henry Andre gave Squire French about how he should write the will! A. I did.

“Q. What did he tell him with reference to the north twenty of the eighty acres that he owned!

“Objection by counsel — objection overruled — exception saved.

‘£ A. Well, he divided the eighty into four parts, and I couldn’t recall exactly, but there was three girls and George Andre, Jr., and he divided it into four equal parts and gave twenty acres to each one.

“Q. Did he tell Squire French which one of the children was to have a certain twenty! A. He did; he designated each child and which twenty they should have.

“Q. Do you remember how they tried to get the legal description of the land when the will was being written! A. I think Mr. Andre gave it to him from memory while he was lying in the bed, I don’t think he had any deeds there.”

Over the objection of counsel for defendants, George Andre testified that he was present when the will was made.

“Q. What did he tell Squire French to write into the will about the land! A. Well, he said he would divide it up between the four of us, twenty acres apiece.

“Q. Who did he tell him to give the south (north!) twenty to! A. To me, George Andre.

££Q. Who did he tell him to give the south twenty of the north forty to! A. To Birdie Majors.

“Q. Plow did he say to divide the south forty? A. East and west.

“Q. Who did he say to give the west twenty of that forty to? A. To Delia Brown.

“Q. Who was Squire French instructed to give the east twenty of that forty to in the will? A. Marv Mc-Keag.”

W. H. Hunt testified that he was present when the will was drawn.

“Q. What were the instructions he gave Squire French? A. Well, he had it divided up equally in four different parts, the north twenty was given to George, and the next twenty was given to Birdie Andre, or Birdie Majors, and the other two twenties of the south forty were given to Mrs. Brown and the other girl.

“Q. How was the south forty divided? A. North and south; the north forty was divided east and west, and the south forty north and south.

“Q. Did Henry Andre give any reason why he divided the land that way? (Objection — overruled—exception saved). A. To make each twenty as near equal as he could. By doing so it gave each person about the same amount of good and bad land in dividing the eighty.”

The foregoing sufficiently outlines the case as presented. Further matters of evidence excepted to will be adverted to in the course of the opinion.

Upon the first count of the petition the court made a finding in substance that the will of Henry Andre, as hereinbefore set out, had been duly proved and admitted to probate; that at the time of his death the said Andre was seized and possessed of a fee simple title to eighty acres of land, being the S. E. % of the N. E. and the N. E. 14 of the S. E. % of Section 17 aforesaid, and owned no other land; that said will is ambiguous and conflicting and the provisions thereof cannot be reconciled with the property owned by the deceased, without extraneous evidence; that from the evidence given in the case it was the purpose and intent of the testator to give to the heirs of Charlie H. Andre (Louella Andre, appellant herein) the sum of five dollars, to the heirs of Lucy E. Wells the sum of one dollar each, and to his wife, Mine Andre, the use and benefit of all of said land so long as she lived; that from the evidence it was the purpose and intention of said Henry Andre to divide the eighty acres of land he possessed into four equal parts, and that by dividing the north forty acres of said land into the north half and south half thereof and the south forty acres into the east half and the west half thereof, the four parts thereby made would be substantially equal in value; that from the evidence and the face of the will it was the purpose and intention of said Andre to devise to his son George Andre, Jr., the N. 14 of the S. E. 14 of the N. E. 14 of said Section 17, to his daughter Byrdia L. Majors the S. 14 the S. E. 14 °f the N- E. 14 of said section, to his daughter Mary L. McKeag the E. % of the N. E. 14 of the S. E. 14 of said section, and to his daughter Delia Brown the W. 14 of the N. E. 14 of the S. E. 14 of said section, each of said tracts containing 20 acres, and all to be subject to the life use by his widow, Mine Andre. Pursuant to this finding the court rendered a decree construing the will accordingly, and adjudging the several, parties to take absolutely thereunder the several sums of money and tracts of land respectively found to be due them, the said land to be subject to the life use by Mine Andre and to the payment of the money legacies provided in the will.

Upon the second count pleaded in the petition the court made a finding that plaintiff was the absolute owner in fee simple of the N. 14 of the S. E. 14 of the N. E. 14 of Section 17, subject to the right of Mine Andre to have the use and benefit thereof during her lifetime and subject also to the payment of the money legacies provided in the will of Henry Andre. In accordance with this finding the court rendered a decree quieting title to said land in plaintiff and barring defendants from asserting any claim thereto.

' From the judgment and decree so rendered upon both counts, defendant Louella Andre has appealed.

I. Appellant assigns as error the admission of “any evidence in the case over the objection of the defendant.” At the trial the objection offered against the introduction of any evidence was put upon the ground that “the petition does not state facts sufficient to constitute a cause of action.” In the brief filed in this court, however, appellant seems to predicate her objection upon lack of jurisdiction in the court to construe a will “which only affects real estate, the devisees claiming only legal estates,” and upon want of jurisdiction by the court “to reform a will on account of a mistake of the draftsman.” As further error appellant assigns the rendering of “any verdict reforming the alleged will of .said Henry Andre.” This assignment is likewise based upon lack of jurisdiction by the court below, and we shall accordingly consider the alleged errors together.

In support of the contention that a court of equity cannot construe a will on application of devisees claiming merely legal estates in real property, learned counsel for appellant cite 40 Cyc. 1840. True, the doctrine relied on is there enunciated as stated by counsel. However, the authorities cited , in substantiation of the rule are all of foreign states and are not consonant with the holdings of courts of last reso'rt in Missouri. By undoubted precedent it is now well established that in this State, circuit courts, as courts of equity, acting upon application of any party interested, have jurisdiction to construe doubtful provisions of a will, whether relating to real estate or personalty. [Lich v. Lich, 158 Mo. App. 400; Davidson v. Inv. Co., 226 Mo. l. c. 23; First Baptist Church v. Robberson, 71 Mo. 326; Hamer v. Cook, 118 Mo. l. c. 489; Graham v. Allison, 24 Mo. App. 516.]

For authority that the court had no jurisdiction to reform the will on account of a mistake of the draftsman, counsel cite the case of Goode v. Goode, 22 Mo. 518. As argued, the court in that case does substantially announce the rule as stated by appellant. A reference to the facts involved and the authorities quoted will show, however, that the doctrine pronounced was not to be considered applicable to wills where the mistake is apparent on the face of the instrument or where there arises a latent ambiguity. It is obvious from the will before us, without resort to extraneous evidence, that a mistake occurred when by the second paragraph thereof the testator devised all of the N. y2 of the S. E. 14 of Section 17 to his son George Andre, Jr., and by the fourth and fifth paragraphs devised part of the same land, to-wit, the eastern forty acres, to his daughters, Mary L. MeKeag and Delia Brown. It is equally obvious that a mistake was made when by the second paragraph he devised eighty acres of land to George Andre, Jr., calling it twenty acres, and that a latent ambiguity existed when by the same paragraph he gave the said George Andre, Jr., forty acres, and by the third paragraph gave Byrdia L. Majors eighty acres, both of which tracts he in fact did not own. The Goode ease, supra, cannot therefore be said to constitute authority in the instant case, but contra, in the light of more pertinent and recent decisions, we hold that the court had jurisdiction to construe the will here present. [Thomson v. Thomson, 115 Mo. 56; Board of Trustees v. May, 201 Mo. 360; McMahan v. Hubbard, 217 Mo. 624; Briant v. Garrison, 150 Mo. 655; Patch v. White, 117 U. S. 210.]

As to the objection urged at the trial, that the petition did not state facts sufficient to constitute a cause of action, we are clearly of the opinion that there is no merit in that contention. The first count pleads the will in full, alleges its having been probated, sets 0Ilf ^ie laild actually owned by the testator, indicates specifically wherein the provisions are uncertain and conflicting as to the disposition- of land owned and devised, and suggests the construction which should prevail. The second count pleads the ownership of the land in controversy, alleges the assertion of claims adverse thereto, asks the court to try and determine the interests of the parties, and prays a decree quieting title in plaintiff. "We rule that the allegations in both counts are sufficient.

II. Appellant contends that the court erred “in admitting in evidence over the objections of the defendant, the alleged will of Henry Andre, offered by plaintiff.” In support of this insistence learned counsel ^or aPPeUa*t urge that no certificate showing that the will had been recorded in the office of the Clerk of the Probate Court “was admitted or offered in evidence.” An examination of the bill of exceptions shows that endorsed on the will ‘ ‘ offered and introduced in evidence” appears a certificate'under seal, signed “Thomas R. Shaw, Judge and ex-officio Clerk,” certifying that “the foregoing last will and testament of Henry Andre, deceased, together with the proof and certificate of probate thereof, were duly recorded in my office at G-allatin on the 14th day of March, A. D. 1906, in Book 2, page 326, and following.” In view of this recital, the point made is unavailing, being contradicted by the bill of exceptions, which we have held imports absolute verity. [Pietzuk v. Kansas City Rys. Co., not yet reported; White v. Mo. Pac. Ry. Co., 178 S. W. l. c. 84; Althoff v. Transit Co., 204 Mo. 166; Stegman v. Berryhill, 72 Mo. 307.]

Appellant further insists that the will was not admissible in evidence for the reason that it was “not established by proper' judgment of a proper court. ’ ’ Again a reference to the bill of exceptions shows ^la^ the introduced in evidence had endorsed thereon a certificate signed by the three attesting witnesses to the will, sworn to before the Judge and ex-officio Clerk of the Probate Court of Daviess County, to the effect that on March 14, 1906', in vacation, they personally appeared before the said judge and made proof of the excution of the will, i. e. that the testator had signed and published the same in their presence, that at the time of publication he was of sound mind and more than 21 years of age, and that at his request and in his presence and in the presence of each other they had subscribed their names thereto as attesting witnesses. Following this endorsement appears a further certificate under seal, dated March 14,1906, signed “Thomas R. Shaw, Judge and ex-officio Clerk,” reciting that “I, Thomas R. Shaw, Judge and ex-officio Clerk of the Probate Court of the county and state aforesaid, having examined the foregoing instrument of writing, signed by Henry Andre, and purporting to be the last will and testament of Henry Andre, deceased, and having heard the testimony of Andrew Miller and W. II. Hunt and George Andre, Sr., subscribing witnesses thereto in relation to the execution of the same, do declare and adjudge said instrument of writing to be the last will and testament of Henry Andre, deceased, late of Daviess County, and the same is therefore admitted to probate and ordered to be recorded.” Then follows the certificate of recording, as above mentioned. True, as argued by appellant, the record does not disclose that the judgment thus rendered in vacation was confirmed in term time. However, under our statute, Section 564, Laws of 1917, page 128 (Sec. 534, R. S. 1919), which provides that “every will, admitted to probate in this State, together with the order of the court admitting the same recorded and certified by the clerk of the court and attested by his seal of office, may be read as evidence without any further proof thereof,” we are clearly of the opinion, and so hold, that the court committed no error in admitting the instant will in evidence. The cases cited by counsel for appellant are distinguishable from the facts in the case under review, for here the original will, duly proved, admitted to probate by the judge of the court, and recorded, was introduced, while there the will was proved before the clerk in vacation, without confirmation by the court. We therefore rule the point against appellant.

III. Appellant next assigns as error the admission in evidence of a certified plat of original entries on file in the office of the Clerk of the county, court of Daviess County, and a waranty deed from the Han-nikal & St. Joseph Railway Company to Henry Andre. These muniments of title were of - fered by plaintiff as part of a chain to establish title claimed by him in the second count of his petition. They were objected to by appellant, “the plat for the reason that it constituted no evidence of passing of legal title from the United States Government, and the deed for the reason that the purported grantor had no title.”

The only answer filed by any of the defendants, appellant included, was a general denial. Defendants all contented themselves with resting their case upon the title proved by plaintiff, offering no evidence in derogation thereof.

The evidence adduced by' plaintiff to sustain the issues on his part tended to prove that Henry Andre (under whose will plaintiff claims) had purchased the north forty acres of which he died possessed from the Hannibal & St. J oseph Railway Company, and the south forty acres from one Ed. E. Yates; that as soon as he acquired the same he had taken possession thereof and occupied the land as his homestead up until the time of his death. The particular land owned by the said Andre was identified by witnesses French and R. W. Burge, from a county atlas of Daviess County, introduced in evidence. Witness Miller, who lived “just a mile across the field” from the Andre farm testified:

“Q. How long had he [Henry Andre] lived by you? A. I have been there 43 years, and he was living there when I moved where I am now.

“Q. On which forty was he living? A. On the north forty of the eighty.

“Q. When did he acquire the south forty? A. It was some time after I came where I am; I think fifteen or twenty years ago.

“Q. After lie acquired the south forty, who had possession of that? A. Him, all the time.

“Q. Ever since you first knew him forty years ago, he had possession of the north forty. A. Yes, sir.

“Q. And he had possession of the south forty ever since he bought it? A. Yes, sir.” •

From all the evidence it is clear that Henry Andre was the source of title of plaintiff; and defendants, having merely denied plaintiff’s title, but having shown no better title and no other source by which they could possibly have acquired title, must be held to also claim through Henry Andre, thereby making him the common source of title. That he was the common source is apparent from the whole face of the record.

Accordingly, in making his case, it was not incumbent on plaintiff to go back of the common source of title, and any irregularities which may have existed in documents or conveyances prior to such common source were immaterial. [Harrison Machine Works v. Bowers, 200 Mo. 1. c. 235; Ebersole v. Rankin, 102 Mo. l. c. 498, 499; Charles v. White, 214 Mo. l. c. 211, 212; Gage v. Cantwell, 191 Mo. 698; Stewart v. Lead Belt Land Co., 200 Mo. l. c. 291; Gratton v. Land & Lumber Co., 189 Mo; 322; Finch v. Ullman, 105 Mo. 255.] The claim of error is therefore disallowed.

IV. Appellant finally contends that the court erred in admitting in evidence “the testimony of witness L. B. French, as to the intentioii and declarations of the testator Henry Andre.” The witness' French being the scrivener of the will, and the weight of authority holding that the testimony of the scrivener, as to the intention or understanding of the testator, is inadmissible, we are inclined to the view that the point is well taken. [Napier v. Little, 137 Ga. 242, 38 L. R. A. (N. S.) 91; Batton v. American Tract Society, 23 Vt. 336; Griscom v. Evens, 40 N. J. L. 402; McCauley & Co. v. Buckner, 87 Ky. 191; M’Allister v. Tate, 11 Rich. 509; Lincoln v. Perry, 149 Mass. 368; 40

Cyc. 1436.] However, the witnesses W. H. Hunt and George Andre, who the record shows were present when the will was drawn, testified as to the declarations made by the testator relative to the manner in which he desired the land to be divided, even more explicitly than did the scrivener French. Therefore, there was substantial evidence before the court, exclusive of the testimony of the witness French, upon which to predicate the finding that it was the intention of the testator to devise to his several children the lands specifically adjudged to be theirs. Such being the case, and a review of all of the evidence having served to convince us that it was sufficient to authorize the finding and decree entered thereon, we are not disposed, on account of what may in the instant case be characterized as harmless error, to disturb the conclusions reached by the learned trial chancellor.

Accordingly, having fully considered the several questions raised by appellant, and finding nothing therein to justify an interference with the judgment rendered, the same is hereby affirmed.

All concur.