author: GRAVES, J.

text:
    EMIL RADTKE v. ST. LOUIS BASKET & BOX COMPANY, Appellant.
    Division One,
    June 14, 1910.
    1. NEGLIGENCE: Combined Act of Master and Fellow-Servant: Demurrer. Where the injury was the result of the combined negligent act of the master and the negligent act of a fellow-servant, no demurrer to the evidence should be sustained. So that where the petition charged that the master negligently furnished plaintiff an unsafe place in which to work, and the evidence shows that a motor shaft was kept running in the factory and plaintiff was required to stand on a ladder and to hold a band off of this shaft while the master’s foreman repaired a belt encircling the shaft, and that the foreman in doing so permitted the band to run over the edge of a pulley on a machine to which the band belonged, and thereby the band became taut, caught plaintiff’s hand between the band and shaft, and injured him, no demurrer to the evidence should he sustained, even though it he admitted the foreman was, for the moment, a fellow-servant, for the motor shaft was kept in motion, and that was the act of the master.
    2. -: Dangerous Place: Instruction. Where both a dangerous place and a careless method of doing the work were charged, and were not without proof, an instruction telling the jury that if .defendant’s foreman sent plaintiff into an unsafe and dangerous place to work, and directed plaintiff to assist in a dangerous and unsafe method of mending the belt in question, and the jury found that such act of the defendant was the occasion of the injury, then a verdict must be returned for plaintiff, was proper.
    3. -: Instruction: Measure of Damages: Medicine. Where the petition alleges no money paid out or expenses incurred for medicine, an instruction which permits a recovery for medicine is error.
    4. -: -: -: Medical Expense. Where the petition alleges plaintiff had incurred an expense of a definite sum for medical attendance, an instruction which authorizes a recovery for medical services without limiting the recovery to the amount claimed, or to the reasonable value thereof, is erroneous.
    5. -: -: -: Loss of Earnings. Where the petition charged that plaintiff’s loss of earnings in the past was nine dollars per week and also charged that he “will continue to lose said sum in the future for an indefinite period,” an instruction which permits a recovery for loss of earnings without any limitations whatever is erroneous. His recovery in that respect for the future was limited by his petition to nine dollars per week. Nor will the court undertake to cure the error by requiring a remittitur, where the verdict is for such a-sum as would bespeak close consideration as to whether- under all the evidence it is excessive.
    6. -: -: Vice-Principal or Fellow-Servant: Matter of Law. Where it is undisputed that the party doing the negligent act was a foreman, then, if the act done or the act omitted was one pertaining to the personal duties of the master toward his servant, and the foreman did such act, the court should instruct the jury that such act was that of the master, and not the act of a fellow-servant. Where the act is described to the court, as having been done by the foreman, it is the duty of the court to declare to the jury, as a matter of law, whether said act was that of the master or that of a fellow-servant,, and not leave it to the jury to say whether the particular negligent act was that of the one or the other.

      Appeal from St. Louis City Circuit Court. — How. Geo. H. Shields, Judge.
    Reversed and remanded.

      Seddon & Holland for appellant.
    (1) The court erred in refusing to give the instruction in the nature of a demurrer to the evidence offered by defendant at the close of all the evidence. Grattis v. Railroad, 153 Mo. 380; Reichl v. Flynn, 196 Pa. St. '2:63; Day harsh v. Railroad, 103 Mo. 570; Fogarty v. Transit Co., 180 Mo. 490; Hawk v. Lumber Co., 166 Mo. 121; Garland v. Railroad, 85 Mo. 581; Gaul v. Beckstein, 173 111. 183; Reed v. Stockmeyer, 74 Fed. 186; Hussey v. Coger, 112 N. Y. 614; Klochinsky v. Lumber Co., 93 Wis. 417; Gain v. Railroad, 101 Tenn. 380; Railroad v. Mauzy, 98 Va. 629; Mc-Elligott v. Randolph, 61 Conn. 157; Railroad v. Torry, 58 Ark. 277; Holtz v. Railroad, 69 Minn. 524; Lindvall v. Woods, 41 Minn. 217; Daves v. Railroad, 98 Cal. 19; Railroad v. Charless, 162 U. S. 360. (2) The court erred in giving instruction 1 at the instance of plaintiff. (a) Because it is too general in its scope. Mulderig v. Railroad, 116 Mo. App. 655; Allen v. Transit Co., 81 S. W. 1142. (b) The instruction is erroneous because it is not limited to the specifications of negligence contained in the petition. McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 514; Mueller v. Shoe Co., 109 Mo. 506; Adolph v. Pretzel Co., 100 Mo. 199; Evans v. Railroad, 222 Mo. 435; Beáve v. Transit Co., 212 Mo. 331. (c) Because there was no testimony upon which to base said instruction. Stone v. Hunt, 114 Mo. 66; Evans v. Interstate Co., 106 Mo. 594; Yamell v. Railroad, 113 Mo. 570. (3) The court erred in giving instruction 2 at the instance of plaintiff, (a) Because there was no evidence upon which to base said instruction, (b) Because it was error to leave to the jury the •determination of -whether or not the foreman at the time was acting as vice-principal. (4) The court erred in giving instruction 14 of its own motion, (a) Because it allows a recovery for medicine when there was no pleading or evidence that the plaintiff was put to any expense for medicine. Heidebrink v. Railroad, 113 S. W. 233. (b) Because it allows unlimited recovery for lost earnings when the petition only claimed lost earnings at the rate of $9 per week. Heinz v. Rail.road, 122 S. W. 347. (c) Because it allows unlimited recovery for medical services when the petition claims ■loss of $21. (d) Because it allows recovery for any liability for medicines and medical services without limiting recovery to reasonable liability, (e) Because it assumes that plaintiff sustained pain and suffering.

      Nagel <& Kirby, Scullin & Chopin and Truman P. ‘Young for respondent.
    (1) It is the duty of the master to furnish the» servant with a reasonably safe place in which to work. If he, whether acting by himself or through a vice-principal or foreman, sends a servant into a dangerous place, and the servant is injured while there, the master is liable. And this is especially true if the servant is sent out of the usual line of his employment into the dangerous place. Nash v. Brick Co., 109 Mo. App. 600; Zellars v. Water & Light Co.-, 92 Mo. App. 107; Herdler v. Stove C'o., 136 Mo. 3; Doyle v. Trust Co., 140 Mo. 18; Mitchell v. Railroad, 108 Mo. App. 142; Van Esler v. Cigar Co., 108 Mo. App. 621; Thompson v. Railroad, 86 Mo. App. .141; Browning v, Hasten, 107 Mo. App. 59; Bradley v. Railroad, 138 Mo. 293; Stevens v. Railroad, 86 Mo. 221, 96 Mo. 207; Keegan v. Havanaugh, 62 Mo. 230'; Foster v. Railroad, 115 Mo. 177; Weston v. Mining Co., 105 Mo. App. 702; Haworth v. Telephone Co., 105 Mo. App. 161; Dgne v. Irwin, 172 Mo. 306; Sullivan v. Railroad, 107 Mo. 66; Moore v. Railroad, 85 Mo. 588; Burkliard v. Rope Co., 217 Mo. 466; Meily v. Railroad, 215 Mo. 566; Garaei v. Construction Co., 124 Mo. App. 709; Combs v. Construction Co., 205 Mo. 367; Rigsby v. Supply Co., 115 Mó. App. 313; Bokamp v. Railroad, 123 Mo. App. 270. (2) Tbe master is liable for an injury to the servant occasioned by the act of a foreman done in the exercise of his authority as foreman, whether the act be one of omission or commission, the failure to perform a duty which the law places upon a master, or an affirmative act done in his representative capacity and in the exercise of the authority derived from the master. Fogarty v. Railroad, 180 Mo. 490; Reed v. Railroad, 94 Mo. App. 380; Buckalew v. Railroad, 107 Mo. App. 575; Haworth v. Railroad, 94 Mo. App. 315; Hutson v. Railroad, 50 Mo. App. '300; Russ v. Railroad, 112 Mo. 45; Dayharsh v. Railroad, 103 Mo. 570; Strode v. Conkey, 105 Mo. App. 12; Bien v. Transit Co., 108 Mo. App. 399; Warren v. Railroad, 113 Mo. App. 498; Gormley v. Iron Works, 61 Mo. 492; Hollweg v. Bell Telephone C’o., 195 Mo. 149; Donnelly v. Mining Co., 103 Mo. App. 349,-Schroeder v. Railroad, 108 Mo. 327; Miller v. Railroad, 109 Mo. 356; Grattis v. Railroad, 153 Mo. 392; Railroad v. May, 108 111. 288; Fanter v. Clark, 15 111. App. 475; Brick Co. v. Savkowiak, 148 111. 580; Fraser v. Schroeder, 163 111. 464; Mórton Bros. v. Nadabock, 190 111. 595; Steel Co. v. Sehymanowski, 162 111. 447; Schaub v. Railroad, 106 Mo. 74; Mining Co. v. Doris, 90 Tenn. 711; 1 Shearman & Redfield on Negligence (5 Ed.), par. 226. (3) The master is liable for an injury to a servant resulting from his negligence, even though other causes, such as the negligence of a fellow-servant, concurred in bringing about the injury. Bluedorn v. Railroad, 108 Mo. 439; De Weese v. Mining Co., 54 Mo. App. 476; Craig v. Railroad, 54 Mo. App. 523; Ermer v. Brewing Co., 69 Mo. App. 17; Foster v. Railroad, 115 Mo. 165; Young v. Iron Co., 103 Mo. 324; Kennedy v. Gas Light Co., 215 Mo. 688; Buckner v. Horse & Mule Co., 120' S. W. 766. (4) The question whether plaintiff was injured by the foreman while acting as foreman, was properly submitted to the jury. Fogarty v. Transfer Co., 180 Mo. 490; Bennett v. Lime Co., 124 S. W. 608; Burkhard v. Rope Co., 217 Mo. 483. (5) The question of the cause of the injury was for the jury. Glasscock v. Dry Goods Co., 106 Mo. App. 656; Booth y. Air Line, 76 Mo. App. 522; Ruth v. Railroad, 70 Mo. App. 190; Reichla v. Gruensfelder, 52 Mo. App. 48; Blanton v. Dold, 109 Mo. 73; Rogers v. Printing Co., 103 Mo. App. 683. (6) The measure of damages was properly submitted) by the court in a general instruction, the loss of earnings being for both the past and the future. Lindsay v. Kansas City, 195 Mo, 166; Kennedy v. Gas Light Co., 215 Mo. 701; Browning v. Railroad, 124 Mo. 55; Swearingen v. Mining Co., 212 Mo. 538; Abbit v. Transit Co., 104 Mo. App. 540’; Tandy v. Transit Co., 178 Mo. 240‘; "Waddell v. Railroad, 213 Mo. 18; Gerdes v. Foundry Co., 124 Mo. 347; Smiley v. Railroad, 160 Mo. 629. (7) The damages assessed by the jury were not excessive. Phippin v. Railroad, 196 Mo. 321; Latson v. Railroad, 192 Mo. 468; Chitty v. Railroad, 166 Mo. 435; Devoy v. Railroad, 192 Mo. 198; Dougherty v. Railroad, 97 Mo. 641; Griffith v. Railroad, 98 Mo. 168; Goldsmith v. Holland Building, 182 Mo. 597; Hollenbeck v. Railroad, 141 Mo. ■97; Brady v. Railroad, 206 Mo. 509; Swearingen v. Mining Co., 212 Mo. 539; Oglesby v. Railroad, 150' Mo. 161; Scullin v. Railroad, 184 Mo. 695; Newcomb v. Railroad, 182 Mo. 867.
   GRAVES, J.

— Action for personal injuries, with damages alleged in the aggregate sum of $25,000. Verdict and judgment in favor of plaintiff for $10,000’, from which defendant has appealed. As indicated by ■the name, defendant is a corporation engaged in the manufacturing business and to that end had and operated a factory in the city of St. Lotus, in which factory plaintiff was one of its employees. His employment was through one Albert Schmidt, a foreman of the defendant. The petition is minute in detail and of great length, but boiled down, it avers: that plaintiff was working on a machine in said shops or factory known as a cutting machine; that in so doing he was under the direction of the foreman, Schmidt; that in the same room were numbers of other machines; that running through the room and for the purpose of operating all these machines was an axle or motor shaft; that the sundry machines in the room were operated by means of belts running down from this motor shaft; that this motor shaft was kept in continuous and rapid motion; that the cutting machine on which plaintiff worked was operated by a belt from this motor shaft, that came down the distance of ten feet at an angle of about thirty' degrees, and then was placed upon a pulley fifteen inches or more in diameter; that the pulley was upon a shaft upon the cutting machine, and about twelve or fifteen inches from the end thereof; that at the end of the shaft was a handwheel, eighteen or twenty inches in diameter, by which the machine could be operated by hand; that in operating the machine by the belt, the belt was given one-half twist in its course; that said belt was negligently constructed of two or three pieces of leather of different breadths, and was laced together in several places; that by reason of the different widths of the pieces some would project out one-half inch further than the other portions, making dangerous and uneven corners on both sides of the belt; that defendant knew of this condition, or by the exercise of ordinary care might have known of it; that plaintiff was inexperienced and aged about twenty-one years, which fact was known to defendant; that he knew nothing of mending belts, except what he had seen. The particular accident with its surrounding circumstances are then thus described in the petition:

“Plaintiff states that on or about the 27th day of September, 1904, at about 7:25 o ’clock in the forenoon of said day, the said belt connecting the said motor shaft with the said pulley of the cutting machine broke and that it became necessary to relace the same.
“That the Same foreman, Albert Schmidt, carelessly and negligently directed the plaintiff to lean a ladder against the revolving motor shaft, aforesaid, and to carry said belt up said ladder and replace it over the revolving motor shaft, and to then hold it hanging over the said shaft, but in such manner that it should not touch said shaft, in order that he, the said foreman, standing on the floor below, might then relace the said belt.
“Plaintiff states that he, in the exercise of due care, obeyed the directions of the said foreman, and did lean a ladder against the said motor shaft and did carry said belt up the said ladder and place it again over the said shaft. That said foreman thereupon, with the assistance of an employee in said factory, proceeded to relace the said belt, and for that purpose did carelessly and negligently place the said belt around the shaft connecting the pulley of said cutting-machine with the handwheel aforesaid, and that while the said belt so encircled the said motor shaft above and the said shaft of said cutting machine below, the said foreman did carelessly and negligently proceed to mend the said belt and to relace the same; this plaintiff in the meantime, in the exercise of due care, holding the said belt up so that it might not touch the said revolving motor shaft.
“That the ladder so furnished by the defendant to the plaintiff as aforesaid, was broken and defective, that one leg thereof had been broken off and that a piece of wood had been nailed on to take the place of said leg, but that said piece of wood was improperly nailed on, so that the said ladder did not stand firmly, but was shaky and unsteady, which said dangerous condition of said ladder defendant well knew, or by the exercise of ordinary care ought to have known.
'“Plaintiff states that while he held the belt from touching the revolving motor shaft, in manner as aforesaid, defendant’s foreman, Albert Schmidt, with the assistance of the employee aforesaid, having placed said belt around the small shaft of the cutting machine, proceeded .to mend and relace the same, but that said foreman negligently and carelessly proceeded with said work, and while in the act of so mending the belt, said foreman negligently and carelessly drew the said belt and caused said belt to be drawn taut and down against the motor shaft.
“That immediately upon touching said motor shaft, said belt began to revolve at an extremely rapid rate of speed on said shaft; that no notice or warning was given to the plaintiff that said belt was about to be drawn taut and to be made to revolve rapidly around the said motor shaft. That thereupon plaintiff’s hand was immediately caught by the moving belt and drawn between the belt and the motor shaft and was forced and drawn against said shaft, and became pinioned between said shaft and belt, and that plaintiff was thereby pulled from said ladder. That said belt so catching the right arm of plaintiff held him firmly against and bound him to the said motor shaft, and that he was whirled around the said motor shaft several times, after which he fell and struck the floor and said cutting, machine with great violence, by which fall several of said plaintiff’s, ribs were broken.
“Plaintiff states that by reason of the sudden starting of said machinery and belt without notice or warning to the plaintiff, and by reason of said belt being so drawn taut and against the said motor shaft, and by reason of the defective, shaky and dangerous condition of said ladder, plaintiff’s right hand and arm were caught by said belt and by the projections thereon aforesaid, -and drawn in between said shaft and belt.
“That during the mending of the belt the said foreman, Albert Schmidt, continued in charge of work in said factory and continued to give orders, both to the plaintiff and to the said employee assisting him in the lacing of the belt.
“Plaintiff states that by reason of the said catching of his arm, and of said fall, he was severely wounded, braised, lacerated and maimed, and his right arm was severed from his body at a point between the shoulder and the elbow thereof, and that the remainder of said arm was so crashed, lacerated and tom, that it was shortly afterwards amputated at a point a few inches from the shoulder.
“Plaintiff states that defendant, St. Louis Basket & Box Company, was negligent in failing to give plaintiff proper instructions, as aforesaid, and sending plaintiff into a place and position which was dangerous and unsafe, and which plaintiff knew, or by the exercise of ordinary care could have known to be unsafe and dangerous, and in directing plaintiff through its said foreman, Albert Schmidt, to ascend said ladder and hold said belt in the manner aforesaid; and also in furnishing the plaintiff a shaky, unsteady and dangerous condition of said ladder defendant well knew, or by the exercise of ordinary care might have known, and also in permitting said motor shaft to revolve while the belt was being mended, as aforesaid, and also in setting up and maintaining a defective belt made of two or three pieces of leather of different widths, thereby making corners where the said pieces of leather were joined, which defective condition of said belt the defendant well knew, or by the exercise of ordinary care might have known; and also in carelessly and negligently through its said foreman, mending said belt in manner aforesaid, and carelessly and negligently drawing said belt and causing said belt to be drawn down upon the said motor shaft, and in suddenly, without notice or warning to plaintiff, starting the said belt and machinery in manner aforesaid.”

The petition then charges that for medical attention he had incurred an expense of $21. Then follows this allegation:

“Plaintiff states that by reason of said injury he has lost in earnings, since the date thereof, to-wit, September 27, 1904, the sum of nine dollars per week, and will continue to lose said sum in the future for an' indefinite period.
“That his earning capacity is greatly impaired and perhaps entirely gone by reason of said injury.”

The answer was (1) a general denial, (2) a plea of •contributory negligence and (3) a plea of assumption of risk. Reply, general denial. Such were the issues made. ■ The evidence will be noted in connection with the points urged.

I. Defendant earnestly insists that a demurrer to the testimony should have been sustained, and a •finding by the defendant directed by the court. This necessitates a thorough review of the evidence, and in addition an analysis of the pleadings.

The negligent acts complained of in the petition may be thus summarized, (1) failure to give plaintiff proper instructions under the circumstances, (2) sending 'plaintiff into a place of danger, (3) furnishing plaintiff with an unsafe ladder, (4) having and maintaining a defective belt made up of uneven widths, (5) permitting said motor shaft to revolve whilst the belt was being mended, (6) in permitting the belt to get ever the pulley and thus start the machinery in a way to hurt and injure the plaintiff, and (7) in negligently mending such belt in the manner in which it was done.

Defendant urges that the evidence for plaintiff fails to establish any of the acts aforesaid, save and except the sixth subdivision, and that such act was that of a fellow-servant, for which defendant is not responsible.

The evidence for plaintiff shows that the belt in question had broken or pulled apart the evening before; that upon the morning of the accident a ladder was placed upon the moving shaft and plaintiff was directed to ascend the ladder and hold the belt above the shaft so that the belt would not be moved by the revolving shaft; that plaintiff did' this without accident at this time. Later on the same day the belt broke again and plaintiff was directed to ascend the ladder' and hold the belt as above indicated. To mend the belt it was necessary to lace it across once and then-hammer the lacing and lace it across again. That on the previous occasion the hammering was done by placing-the belt upon a block. On this particular occasion plaintiff was holding the belt aloof from the motor shaft, and one Meyer was holding the ends to be laced together and the foreman Schmidt was doing the work of actually lacing the belt. The evidence shows that plaintiff was watching the work of lacing and when Schmidt had laced through once he called for more-slack, and then placed the belt upon the upper portion of the pulley on the cutting machine shaft to-hammer the lacing, when the belt in some manner went on to the pulley, started the machinery and caught plaintiff’s arm and tore it off.

The plaintiff had been told just how to hold the-belt when it was first laced that morning. The motor shaft was moving and the ladder upon which plaintiff' stood upon each occasion was leaning against the moving motor shaft. There is no direct evidence that the-alleged -defect in the ladder had anything to do with the accident.

"We shall'not go into the testimony of the defendant upon this question of demurrer.

In argument, learned counsel for the defendant in an exceedingly ingenious and scholarly manner undertakes to reduce plaintiff’s ease to the single negligent act of Schmidt, in hammering the lacing over the pulley, and then disposing of the controversy by urging that when. Schmidt did the negligent act he was serving the master in the capacity of an ordinary employee, and hence was a fellow-servant with plaintiff, and therefore no recovery could be had' for this negligent act of the fellow-servant. In keeping with this view of the case, counsel analyzes the petition thus: “The plaintiff in his petition alleged several grounds of negligence. The first was that the place where plaintiff was required to work was not reasonably safe in the following particulars, to-wit: The ladder upon which he was required to stand was shaky and unsteady; the belt which was being repaired was in three sections and these sections were of uneven widths; in permitting the motor shaft to revolve while the belt was being mended. The plaintiff also alleged that he was inexperienced in connection with mending belt and defendant was negligent in not giving him proper instruction, and finally, that while he was standing on the ladder holding the belt away from the shaft, defendant’s foreman negligently caused it to be drawn down upon the motor shaft, and thereby set the belt in motion.” Counsel then contend that the evidence was that plaintiff had been fully advised as to how to do this work and had done such work in the same manner on several other occasions, hence that ground of negligence was out of the case. In the same way, the ladder is eliminated, and so throughout, until the act of Schmidt is reached.

We can see how a different analysis of the petition might be made. It could be well said that the petition charges the several distinct acts of negligence indicated in our' analysis in the beginning of this paragraph. That the act of failing to furnish a safe place should be considered as one charge of negligence, and the other acts as independent charges of negligence, and not as mere specifications of the manner in which the place was unsafe. We are inclined to think this the proper view to take of the petition. The petition does not say that plaintiff was in an unsafe place, and then urge that it was unsafe by reason of certain conditions. It may be true, however, to show the unsafe place, it would become necessary to show some of the other alleged conditions. But we hardly think it- necessary to speculate upon a proper analysis of the petition on the question now before us. Defendant’s version of the petition may be taken, and yet there would be no error in refusing a demurrer to the evidence. There is an allegation of plaintiff having been directed to work in an unsafe place, and evidence that his experience was at least limited. He was directed to ascend a ladder placed against a moving shaft, around which was a loose belt which by being placed upon the pulley below would become extremely dangerous. One of the elements which entered into the danger was this constantly moving shaft. With this motor shaft not in motion the belt could have easily been hammered upon the pulley without danger, for then there could have been no movement of the belt or the machinery. The evidence disclosed that this motor shaft was kept in motion, and this act was that of the master. But for this act there could have been no accident. We might concede that Schmidt in hammering the lacing on the pulley was a mere fellow-servant, yet with that concession we would simply have an injury done by two acts of negligence, one that of the master and the other that of the fellow-servant. It required both acts to produce the injury. If, therefore, it be conceded that Schmidt was a fellow-servant and that plaintiff could not recover for his act alone, yet if the injury was the result of the combined negligence of the master and a fellow-servant a different question is presented.

In Browning v. Ry. Co., 124 Mo. l. c. 70, it is said: “It must be considered as settled in Missouri (in accord with tbe generally accepted law elsewhere) that where an employee sustains injury in consequence of the combined negligence of the master and of some fellow-workman, he will not, for that reason alone, be denied a recovery. [Young v. Iron Co., 103 Mo. 324.]

To like effect is Bluedorn v. Ry. Co., 108 Mo. l. c. 448, wherein Black, X, said: “For is the plaintiff’s action defeated because he and the persons in charge of the train’were fellow-servants; for the train was run at a rate of speed prohibited by the ordinance, pursuant to a time card prepared and promulgated by the defendant. The unlawful and negligent act was the joint act of the defendant, and of the servants in charge of the train. The law is well settled that one servant may recover for an injury caused by the combined negligence of the master and a fellow-servant. [Young v. Iron Co., 103 Mo. 324, and cases cited.] ”

So that in this case if there was negligence upon the part of the master in sending plaintiff into an unsafe and dangerous place to work, and this negligence, together with that of a fellow-servant, produced the injury, and such injury would not have resulted except for the combined negligence of the master and the fellow-servant, the master is still liable.

The question remaining is, was there proof of negligence upon the part of the master exclusive of the act of Schmidt? We think so. The evidence discloses all of the surroundings of the place to which ■plaintiff was directed to go by the master. He was placed upon a ladder which was leaned against a revolving motor shaft. On that was a belt which he had to hold in his hand whilst work was being done thereon at the other end, which was likewise around a shaft and close to a pulley. Had the motor shaft been stopped, no possible injury could have resulted. To our mind it was a question for the jury as to whether or not the master was guilty of negligence in sending: plaintiff into an unsafe and dangerous place to work. The details and description of the place were before the jury, and it cannot be said that there was no evidence upon the question. Expert evidence would tend but little to enlighten a jury upon a question of this kind in a case where the surroundings were so susceptible of accurate description, and were so accurately described to the jury.

There was no error in refusing the instruction in the nature of a demurrer, even on the theory of Schmidt being a fellow-servant. This contention is held against the defendant.

II. Complaint is urged against the first instruction given for the plaintiff, but to our mind the objection cannot be sustained. This instruction is predicated upon the theory that if defendant’s foreman sent plaintiff into an unsafe and dangerous place to work, and directed plaintiff to assist in a dangerous and unsafe method of mending the belt in question, .then a verdict might be returned for the plaintiff, if the jury found that such act of the defendant was the occasion of the injury. We are of opinion that this instruction was within the purview of the pleadings and the proof. The petition charges that plaintiff was negligently sent into an unsafe and dangerous place, and a further act of negligence is thus charged: And also in carelessly and negligently, through Its. said foreman, mending the belt in the manner aforesaid.” The manner had been previously described in the petition. Both the questions of dangerous place and careless method adopted for doing the work were pleaded and were not without proof. This instruction is well enough.

III. The court of its own motion gave an instruction upon the measure of damages, and this instruction reads:

“If under the other instructions you decide to find for plaintiff, you will assess his damage at such sum as you believe from the evidence will be a reasonable compensation to him for the bodily and mental pain or suffering he has sustained in consequence of said injuries, as well as for any such permanent disability to labor as you may find from the evidence he has suffered by reason thereof, loss of time, as well as for any liability for medicine and medical services he may have incurred in consequence thereof. If under the other instructions you decide to find for defendant, your verdict need merely state that you find for defendant on the issues joined.”

Defendant complains of this instruction, (1) because it allows a recovery for medicine when the petition did not plead such damages and the evidence did not show such expense, (2) because it permitted an unlimited recovery for lost earnings both before trial and in the future, when the petition only alleged such damages to be nine dollars per week, and (3) because it allowed unlimited recovery for medical services, when the petition only claimed $21 on that account, (4) because it should have limited the liability for medical services to the reasonable value of such services, and (5) because the instruction assumed that plaintiff sustained pain and suffering.

The petition fails to allege any damages by reason of money paid out, or expenses incurred, for medicines, and to that extent the instruction permitted a recovery for special damages not pleaded. Such was error. [Heidbrink v. Railroad, 133 Mo. App. 40.] In the foregoing case it is said: ‘ ‘ The third clause of the instruction on the measure of damages is as follows: ‘For any expense necessarily incurred for medicines, medical attention, or nursing, which the jury may believe from the evidence the plaintiff has sustained or will hereafter sustain by reason of said injuries and directly caused thereby.’ There was no evidence that plaintiff incurred any expense for nursing, and for this reason the instruction is erroneous.”

The petition avers that plaintiff had incurred an expense of $21 for medical attendance, and the instruction authorizes a recovery for medical services without limiting the recovery to the amount claimed, or to the reasonable value of such services. In this there was error. [Smoot v. Kansas City, 194 Mo. l. c. 522; Tinkle v. Railroad, 212 Mo. l. c. 471; Heinz v. Railroad, 143 Mo. App. 38.]

In the Tinkle case, supra, this court said: “In instruction number nine the court told the jury that the plaintiff was entitled to recover for medical services, without limiting the same to the amount claimed in the petition for such services. Upon retrial, this should be corrected.”

In Smoot’s case the instruction as to medical services directed the jury to allow plaintiff “such an amount, not to exceed $350, for said items as would he reasonable compensation for said services, if any.” Of that instruction, we then said: “This instruction is manifestly erroneous in this, that it authorizes a recovery for doctor’s and surgeon’s hire in any sum not exceeding three hundred and fifty dollars; when in the petition upon which this cause is tried, it was alleged that the damages for those items were only the sum of two hundred dollars.”

The petition charged that his loss of earnings before the trial were nine dollars per week. Not only so, hut that was the measure fixed for future loss of time, for the petition reads: “and will continue to lose said sum in the future for an indefinite period.” The instruction permits recovery for “loss of time” without any limitation whatever. The petition not .only fixes the amount of lost earnings suffered but limits the loss of earnings in the future. It covers both those earnings suffered and to be suffered. It fixes the value of all such earnings at nine dollars per week. It is true that the petition avers that plaintiff’s earning capacity “is greatly impaired and perhaps entirely gone,” but that does not change the fact that the value of the earnings was fixed by the petition. Defendant .had a right to rely upon the admission of plaintiff that his loss in this respect had been and would be only nine dollars per week, and it was the duty of the court to so limit the right of recovery in this regard. The instruction given was erroneous upon this question. [Smoot v. Kansas City, supra; Heinz v. Railroad, supra.]

Speaking of a similar instruction in the Smoot case, this court said: “It is also erroneous in not limiting the amount of recovery for loss of time from his means of livelihood to the amount claimed in the petition. It will be noted that the petition only claims the sum of two hundred and fifty dollars for loss of time from his means of livelihood.” Not only did we condemn the instruction, but we went further and held that no remittitur would be allowed. After reviewing and discussing the cases, Fox, J., concludes thus: “Applying the rules as thus indicated by the cases heretofore cited, should this court undertake to cure the error of instruction numbered 4 by ordering that a remittitur be entered? Upon a careful consideration of the entire record we have reached the conclusion that it should not. The record in this case presents an action for personal injuries, and it is clear that there is no positive criterion for determining what the damages ought to be, nor can this court determine what elements of damages were considered by the jury in arriving at their verdict. They were directed by instruction 4, without any limit being fixed, to assess the damages for the loss of the time by the plaintiff from his means of livelihood, and it would simply be pure guesswork by this court, as was said in Slattery v. St. Louis, 120 Mo. 183, as to what amount was allowed by the jury for damages occasioned by the loss of such time.”

So, too, in the Heinz case, supra, Judge Goode, after overruling all other contentions of defendant, reversed and remanded a judgment for plaintiff upon the instruction as to measure of damages. In so doing, he said: “The only other exception which need be noticed is the instruction on the measure of damages: It should be stated by way of premise the petition alleged plaintiff lost two weeks’ time and his earnings of $2.50 a day during that period; that his injuries were treated by a physician, and, on account of the services of the latter, plaintiff had become indebted to him for the reasonable value of the treatment, to-wit, $50. The instruction on the measure of damages told the jury to assess damages for any loss of earnings the. jury might believe had been occasioned by the injuries and the reasonable expense, if any, he had incurred for medical treatment. The exception to the instruction is based on failure to limit recovery for loss of earnings and medical services corresponding to the damages charged in the petition to have been sustained in consequence of those items. We do not see how, in the face of the decisions of the Supreme Court in Smoot v. Kansas City, 194 Mo. 513, 522, and Tinkle v. Railroad, 212 Mo. 445, 471, a reversal of the judgment 'on account of the instruction on the measure of damages can be escaped. In the first of those cases the Supreme Court condemned as erroneous an instruction which did not limit plaintiff’s amount of recovery for loss of time to the amount claimed in his petition, and in the second case it was said a similar instruction ought to be corrected on the second trial. The decisions of Tandy v. Transit Co., 178 Mo. 240; and Lindsay v. K. C., 195 Mo. 166, relied on by plaintiff, are not in point. In those cases there was testimony tending to prove that the injured party would sustain loss of time in the future — that is, after the filing of the petition and even after trial — and for this reason it was held instrnetions on the measure of damages, which did not limit recovery to the loss of time alleged in the petition, were not erroneous, since that allegation covered only time lost up to the day the petition was filed. But in the present. case, whatever time plaintiff lost and whatever expense he was put to for treatment by a physician had all been lost and incurred prior to the filing of the suit. He testified .he had lost two weeks’ time from work, as alleged in the petition, and had incurred a doctor’s bill of $50. There was no chance, then, for other damages to accrue on account of those items continuing to entail damage after the case had been begun. The point falls within the scope of the decisions of the Supreme Court first cited; and the judgment must be reversed and the cause remanded for new trial.”

We, too, are cited to the Lindsay and other eases, but, like Judge Goode, we conclude that they are not in point here. In the case at bar, the loss by injury to earning capacity was not only fixed from the date of the injury to the date of filing the petition at nine dollars per week, but it was fixed at such sum for the future. This instruction is clearly erroneous, and as the verdict in this case is for such a sum as would bespeak close consideration as to whether under all the evidence it is excessive, we think the better course is to reverse and remand.

IY. Plaintiff’s instruction number 2 is criticized by the defendant. This instruction goes beyond the questions of an unsafe place, and an unsafe method of mending the belt, and goes to the act of Schmidt as a ground of recovery. The instruction reads:

“You are further instructed that if the negligence of a foreman arises out of, and is the direct result of the exercise of the authority conferred upon him by the master as a foreman, the master will be liable for such negligence. But if the negligence complained of consists of some act committed or done by him which relates to his duties as a colaborer with those under his control, and which might just as readily have happened with one of them having no such authority, their employer will not be liable.
“And in case you find and believe from the evidence that one Albert Schmidt was employed as foreman in the factory of the defendant and had immediate control and direction of the plaintiff and others engaged in work in said factory, and had authority to direct and control plaintiff’s work, and did on or about the 27th day of September, 1904, undertake and proceed to mend a belt which had been broken in said factory, and in case you find that during the mending of said belt said foreman remained in charge of the work in said factory and of the work of mending the belt, and that plaintiff during the mending of said belt was obeying said foreman and holding the belt according to his directions and orders; and in case you find that during the progress of said work the said Albert Schmidt caused the said belt to be drawn taut and down against the motor shaft mentioned in evidence and that the act of said foreman in so causing said belt to be drawn taut was due to a failure upon his part to exercise reasonable care and that thereby plaintiff was injured, then in that case you are instructed that if you find and believe that the act of the foreman in so causing the belt to be drawn taut and down against the motor shaft was done by him in the exercise of his authority as foreman under the terms of his employment, and was not done in the discharge of his duty as a colaborer with plaintiff in defendant’s factory, then your verdict shall be in favor of plaintiff, unless you further believe that plaintiff was himself guilty of contributory negligence, or assumed the risk'incident to the mending of the belt, as defined for you in subsequent instructions.”

Defendant contends that the instruction is erroneous because it leaves the jury to determine whether the foreman Schmidt was acting in the capacity of a fellow-servant or as vice-principal. The instruction is subject to this objection if it be a valid objection under the law. The question more sharply stated is whether or not the court should have declared as a matter of law what acts were the acts of a vice-principal, and what acts as a matter of law were the acts of a fellow-servant. The court in this case did not declare what acts were those of a vice-principal, but left the jury to determine whether the foreman was acting in one capacity or the other.

It would seem that we are committed to the “dual capacity” doctrine in Missouri. In other words we recognize that a servant trusted by his master with authority may act as both vice-principal and as a fellow-servant. [Fogarty v. Transfer Co., 180 Mo. 490.]

In the Fogarty case, Marshall, J., reviews our own cases as well as those from other jurisdictions. We shall not review them again. The conclusion reached in the Fogarty case was that the ‘ ‘ dual capacity doctrine” prevails in this State and in most other jurisdictions. But the recognition of the doctrine does not go to the question for our decision in the case at bar. The instruction complained of recognized the “dual capacity doctrine.” The question here is, what shall the courts do in submitting the ease? Shall they say to the jury that if it be found from the evidence that the foreman did certain acts, then such acts were the acts of the defendant through its vice-principal, or shall they let the jury determine whether such acts were the acts of the defendant, through its vice-principal on the one hand or the mere acts of a fellow-servant on the other hand. This question the Fogarty case does not specifically decide. There was an instruction in that case which did leave it to the jury to decide whether or not the act complained of was that of a vice-principal or that of a mere fellow-servant, and the judgment was affirmed. The propriety of this instruction is not discussed except as to what was the rule in Illinois. In the Fogarty case the cause of action arose in Illinois and the Illinois laws and decisions-were in evidence. Judge Marshall says: "The question then is, did Edwards act as vice-principal or as a fellow-servant of the plaintiff? If the former, the master is liable. If the latter, the master is not liable. In solving this question it must be borne in mind that under the Illinois law, the general rule is that whether the injury resulted from his acts in the one capacity or in the other, is a question for the jury to decide from all the circumstances of the case, and that the question is only one of law where the facts are conceded or there is no dispute with reference thereto, and where all reasonable men will agree from the evidence and the legitimate conclusions to he drawn therefrom, that the representative, at the time he acted,, was acting as a colaborer, and not as a vice-principal. [Norton v. Nadebok, 190 Ill. l. c. 599.] Or as it is-commonly expressed, did the plaintiff make out a prima-facie case for the jury? If he did, the finding of facts by the jury is not open to review in this court, except in respects and under circumstances that are not present in this record.”

The case, therefore, is not authority for an instruction of the kind now in question. We are also-cited by plaintiff to two other cases, Bennett v. Lime Co., 124 S. W. 608, and Burkard v. Rope Co., 217 Mo. l. c. 483, but these do not go to the point.

We think this instruction is error. Whether Schmidt was a foreman and therefore a vice-principal was a question for the jury, but whether a given act done by him was negligence of the master, or negligence of a fellow-servant, was a question of law forth e court. This because the duties of a master to a servant are fixed. If the act done or the act omitted is one pertaining to the personal duties of the master toward the servant, and the foreman or vice-principal did such act, then the court should declare to the jury that such act was that of the defendant through its-, vice-principal and not the act of a fellow-servant. In other words, when the act is described to the court, it is the duty of the court to declare as a matter of law whether or not an act of that character is that of the master or that of a fellow-servant. The only question, to our mind, to be left to the jury is the fact whether or not the party doing the act is in fact a mere fellow-servant or is a vice-principal. To illustrate. A is the principal, B is the alleged vice-principal, and C the servant. It is disputed as to whether or not B was tbe vice-principal. In such- ease evidence may be introduced pro and con on that question and the jury should be allowed to determine the fact. But if B had done a given act or omitted to do a given act which was negligent, the character of that can be determined as a matter of law. If the jury found that B was acting for the master in providing a place for the employee to work, then such would tend to show the fact that B was a vice-principal, but the court should declare as a master of law that the act of furnishing a reasonably safe place was the act of the principal, provided B was authorized to act for the principal in that regard. In the case at bar it stood undisputed that Schmidt was a foreman of defendant, and the only thing left was to characterize the acts which he did. When he selected the place and the method of doing the work, his act was that’ of the master and such should be declared as a matter of law. To illustrate further, had Schmidt been at work upon the cutting machine along with plaintiff, doing the same or similar work for the common master, and in such work did a thing negligently that caused an injury to plaintiff, the court should declare such act to be one of a fellow-servant. The vice of the instruction lies in the fact that it permits the jury to characterize the act, whilst this should be done by the court.

The duties of a master toward a servant are firmly fixed by the law. If the act done or omitted to be done is one violative of these duties, the court should declare it to be that of the master, and the only question is whether the person doing the act was the representative of the master. The act itself does not necessarily show that the person doing it is representing the master, because an interloper might, without authority, assume to act for the master. The character of the act, however, can always be determined. By applying the law it can be said whether or not the act is one of the character which the master should do or should not do. So that we repeat, that in our opinion the only question for the jury is whether or not the alleged vice-principal was authorized to act for the principal. The acts themselves must be named and characterized by the court. Instruction number 2 for the plaintiff is erroneous. Other instructions we shall not notice, for the reason that the views expressed will enable a retrial of the cause along proper lines.

For these reasons, the judgment is reversed and the cause remanded.

Woodson, J., dissents. Others in this division concur.


source: Caselaw Access Project

author: YALLIANT, J.

license: Public Domain

text:
    GEORGE W. DAVIS v. H. A. FORMAN et al., Appellants.
    Division One,
    June 14, 1910.
    1. EQUITY SUIT: Jury. A suit on a note is converted into one in equity by a cross-bill to have it cancelled, and is triable by the court. But the court has authority to take the opinion of a jury on any specific questions of fact included in the issues made by the pleadings; but the jury’s verdict is merely advisory and may be rejected by the chancellor.
    2. -: -: Issues When Framed'. The statute does not prescribe when the issues to be submitted to a jury in a suit in equity are to be framed, whether before or after the evidence is heard, but leaves that matter to the discretion of the chancellor.
    3. -: -: Verdict by Nine Jurors. The provision of the constitutional amendment permitting nine jurors to render a verdict in a civil action, applies to a jury called by a chancellor in a suit in equity.
    4. -: Finding of Facts. Where the testimony is oral in a suit in equity, the chancellor, who observes the living effects of the trial, is in a better position to pronounce judgment on the weight of the testimony than is the appellate court.
    5. FRAUD: Acquiescence: Delay in Rescinding Contract. Apar ty is not barred from asserting a transaction to be fraudu lent by acquiescence therein and delay in rescinding it, if there were' no facts or circumstances to put him on such inquiry as would have led to discovery.
    <6. -: -: -: Concealment: Misrepresentations Concerning Stocks. If the only misrepresentation concerning stock sold by defendants to plaintiff had related wholly to their value, delay and acquiescence would bar a rescission; but where defendants represented to plaintiff, who knew nothing of the bank stocks sold him, that they owned certain of these stocks, that they regarded them very highly, that they were not for sale, that one of them had formerly been bank examiner and in that capacity discovered that the bank had a million dollars of undisclosed assets which did not appear in its printed statements, that he had kept in close communication with its president and knew his purpose to shortly increase its capital stock from one million to two million dollars, that the stock was now actually worth $400 per share, that they knew of none of it for sale, but thought they knew an old German who lived in the south part of the city who had owned some of the stock and they would ascertain if he would not sell for $360 — thus leading plaintiff to believe he was getting information that was not obtainable by the public, and selling their own stock to him at $360, and thereby inducing him to part with his money to purchase it at a price which was at that time at least ten dollars a share higher than they could otherwise have sold it for — there was nothing to put plaintiff on inquiry as to the ownership of the stock, and his acquiescence and delay to rescind for three years, do not bar his right to rescind, promptly exercised when he discovered the fraud. Nor was it immaterial whose stock it was that plaintiff bought, nor were the representations immaterial.
    7. -: -: -: -: -: Estoppel. One who has by misrepresentation and concealment drawn another into a contract is in no position to complain that he trusted too long in the truth of his statements and might by inquiry have discovered sooner that they were false, and therefore because of his delay cannot rescind.
    8. -: Rescission of Contract: Collection of Dividends After Suit Brought. After plaintiff had tendered the dividends earned by the bank stock sold to him, and the certificate, and demanded a rescission of the contract by which he had purchased the stock, and had been refused, he was justified, after suit was brought for rescission, in collecting further dividends during the pendency of the suit and holding them at the disposal of the court.
    Appeal from St. Louis City Circuit Court. — Mon. Chas. Claflin Alim, Judge.
    Affirmed.

      Chester H. Krum, Nathan Franh and R. A. Jones for appellants.
    (1) There was no issue “made up” in accordance with the statute on which the opinion of a jury could be taken. R. S. 1899, secs. 691 and 692. What the statute contemplates is shown by Besshears v. Rowe, 46- Mo. 501. What the court really did was to try the whole ease by jury — a course sufficiently characterized by Bray v. Thatcher, 28 Mo. 129. (2) The delay of respondent for more than three years to repudiate and rescind is, under the facts in evidence, negligence and acquiescence, barring the right to the intervention of a court of equity, and respondent should therefore be remitted to his remedy at law. Upton v. Tribilcock, 91 U. S. 54; Jones v. Rush, 156 Mo. 374; 2 Pomeroy, Eq. Jur., sec. 917, note, (a) Lapse of time, when it does not operate as a positive or statutory bar, operates as an evidence of assent, acquiescence or waiver, and a delay which might have been of no consequence in an ordinary ease, may be amply sufficient to bar the title of equitable relief when the property is of a speculative character. Bliss v. Prichard, 67 Mo. 187; Smith v. Washington, 11 Mo. App. 525; Hatcher v. Hatcher, 139 Mo. 626; Dennis v. Jones, 14 Atl. (N. J. App.) 913; James v. James, 551 Ala. '534. (b) One who claims' to have been drawn into a fraudulent sale must exercise reasonable care and vigilance to discover the fraud. Richardson v. Low, 149 Fed. 625; Johnston v. Mining Co., 148 U. S. 370; Bank v. Hunt, 76 Mo. 39. (c) And the duty of rescission will arise in cases of the discovery of suspicion of the fraud, or upon being put upon notice, from the time when by reasonable diligence the fraud could have been discovered. Bigelow on Fraud, p. 438; Bassett v. Brown, 105 Mass. 551. (d) The matter of diligence in rescission is peculiarly applicable to speculative property. McLean v. Clapp, 141 U. S. 432; Crimes v. Sanders, 93 U. S. 62. (e) Allegation of ownership, immaterial. Downs v. Self, 67 S. W. 897. (f) The undisputed fact is that respondent was put on notice of the alleged fraud within a few weeks after its asserted perpetration, but he waited some three years before he even made complaint. (3) The respondent by collecting and appropriating to his own use dividends on the stock, after he obtained positive knowledge of the alleged fraud, thereby ratified the sale and waived his right to rescind. Shapiro v. Goldberg, 192 U. S. 242; Lapp v. Ryan, 23 Mo. App. 436; 2 Pom., Eq. Jur., sec. 925; Dennis v. Jones, 14 Atl. (N. J.) 913; Bassett v. Brown, 105 Mass. 551; Upton v. Tribilcock, 91 U. S. 54; Bigelow on Estoppel (5 Ed.), p.. 673; Tower v. Pauley, 51 Mo. App. 75'. (a) A valid rescission can be effected only by notice of intention and actual return or tender of all that has been received under the contract. Bigelow on Fraud, 4, p. 431; Rigdon v. Tralcott, 141 111. 649. (b) The defrauded party has but one election to rescind, which he must exercise at once, and such election is irrevocable. Bigelow on Fraud, p. 436. (e) Delay is an election to treat the contract as valid. -Oakley v. Cook. 41 N. J. Eq. 350 ; 2 Pom., Eq. Jur., sec. 817. (d) The exercise of acts of ownership, after discovery of the fraud, must be “held to be wholly inconsistent with an election to undo the transaction and stand upon the right of rescission,” and will defeat the right. Shapiro v. Goldberg, 192 U, S. 242; Lapp v. Ryan, 23 Mo. App. 436; Bassett v. Brown, 105 Mass. 557; 2 Pom., Eq. Jur.; Story on Sales, sec. 420, 446 ; 2 Kent’s Com. (6 Ed.), 613.

      John A. Blevins and Henry E. Haas for respondent.
    (1) (a) Appellants did not make any objection,, or save any exception, to the action of the court in submitting issues to the jury. If there was any irregularity in the manner of the submission of such issues, appellants waived same by their failure to object at the trial and to except to the action of the court in that behalf, (b) Under the statute, the court had the right to take the opinion of a jury upon any issue involved in the case, and the manner of making up such issue was within the discretion of the trial court. The issues were properly submitted to the jury for their opinion, and the matter complained of by appellants, if there is any basis for such complaint at all, is, at most, a mere irregularity, which does not affect the merits of the controversy and should be disregarded. (2) The respondent, upon the discovery of the fraud practiced upon him, promptly notified the appellants of his intention to rescind, and offered to return to-appellants the consideration received by him. They refused to rescind, and within a few days thereafter respondent filed suit for a rescission. He was not guilty of negligence in not 'discovering the fraud sooner, nor did he assent to, acquiesce in, or waive such fraud. Under the facts in evidence he is entitled to-the equitable relief prayed for. Judd v. Walker, 215 Mo. 312; Fulkerson v. Lynn, 64 Mo. App. 653; Butler v. Prentiss, 158 N. Y. 49; St. John v. Hendrickson, 81 Ind. 352; Montgomery v. Pickering, 116 Mass. 230; Morawetz on Corporations, sec. 100; 2 Pomeroy,. Equity Jur., see. 897; Brolaski v. Carr, 127 Mo. App. 286; Cottrill v. Krum, 100 Mo. 404; Judd v. Walker, 114 Mo. App. 142; Price v. McCauley, 12 DeGex, M. & G. 339; Bigelow on Fraud,, secs. 523-525. (3) Appellants formed the purpose to sell Davis their stock and consummated the deal through Forman. Browning was a party to the whole transaction, helped lay the plans, received half of the money, and is bound by Forman’s acts and misrepresentations. Forman, with Browning’s knowledge and consent, undertook to procure the stock for Davis from Sellner, but instead off doing so, sold Davis the stock belonging to himself and Browning, in excess of its value. The misrepresentations made by both Browning and Forman were intended by them to mislead and deceive Davis and conceal from -him the fact that they were selling Davis their own stock at a price fixed by themselves. In this they succeeded, and under the evidence respondent is entitled to have the contract of sale rescinded, and a ■decree against both appellants for the money paid out 'by him. Judd v. Walker, 215 Mo. 312; Sterling v. Smit, 97 Cal. 343 ; 2 Pomeroy, Equity, sec. 959; Montgomery v. Hundley, 205 Mo. 138; Connor v. Black, 119 Mo. 134; Conkey v. Bond, 3G N. T. 429. (4) For-man having undertaken to act as agent for respondent in the purchase of the stock, was as much bound to act honorably without compensation as with compensation. Marshall v. Ferguson, 94 Mo. App. 183'; Coalton v. Holliday, 59 111. 156; 2 Pomeroy’s Equity, sec. 959. (5) The collection by respondent of dividends on the stock was not a ratification of the sale to him, nor did he thereby waive his right to rescind. Appellants had in their possession a large amount of money belonging to respondent, over and above that which respondent had collected as dividends, and upon a rescission of the contract they would have had to pay same over to respondent. Appellants having refused to rescind, or to return to respondent his money, respondent had the right to collect the dividends in question and hold the same as an indemnity pro tanto. Winter v. Cable Co., 160 Mo. 159; Pierce v. Pettus, 47 Barb. 285; Kloy v. Healy, 127 N. T. 556; Implement Co. v. Ellis, 125 Mo. App. 696. (6) Respondent seeks a rescission of the sale of the stock to him. His suit is for a rescission. Before suit was brought he offered to rescind, and tendered back the consideration received, and in his answer and petition he again tendered back the consideration received. This is all that was required of him in a suit for a rescission. Vail v. Reynolds, 118 N. Y. 297 ; 24 Am. and Eng. Ency. Law, pp. 220-622; Brown v. Norman, 65 Miss. 369; Masson v. Bovet, 1 Denio 69; Paquin v. Milliken,163 Mo. 104; Hagen v. Bank, 182 Mo. 348 ; Winter v. Cable Co., 160 Mo. 159; Pierce v. Pettus, 47 Barb. 285>.
   YALLIANT, J.

— This is a suit in equity to rescind a transaction whereby the plaintiff purchased of defendants 100 shares of the capital stock of the National Bank of Commerce of Kansas City, on the ground of fraud which plaintiff alleges was practiced on him hy the defendants. In the transaction complained of the plaintiff gave his note for $31,000' which is now held hy defendant Forman and on which Forman has sued the plaintiff. Plaintiff’s petition specifies the alleged fraudulent acts and prays that the contract of purchase be rescinded and that defendant Forman be enjoined from prosecuting his suit on the note. The answer specifically denied all the allegations of fraud. It is not worth while to here set out the alleged fraudulent acts as stated in the pleadings, because they are the same as the plaintiff’s evidence tended to prove and will sufficiently appear when we come to a consideration of the evidence.

The two suits were by agreement consolidated and tried as one. The trial resulted in a judgment in' favor of Davis, the plaintiff in this suit, and also in his favor in the other suit in which he was defendant. The issues made by the pleadings were substantially the same in both suits. In the decree the court finds the issues of fact for the plaintiff, and adjudges’ that the contract of purchase be rescinded, that the $31,000 note be cancelled, that the plaintiff recover of the defendants the money he paid them on the purchase, and on the note for principal and interest at six per cent, amounting to $12,838.62, less the amount of dividends which plaintiff received on the stock while he held it, and interest thereon at six per cent, amounting to $4851, leaving the amount due plaintiff $7,987.62, for which he is given judgment, and to secure the same he is given a lien on the stock, which the sheriff is to sell and apply the proceeds first to the payment of the $7,987.62, to plaintiff, next to the costs, and the balance to the defendants. The decree disposes of both suits. The defendants Forman and Browning appeal.

I. Appellants’ first point is that the trial court erred in a matter of practice in the manner in which it submitted the issues of fact to the jury. This is a suit in equity, and was triable by the court without a jury; even the suit on the note was converted into-a suit in equity by the answer setting up an equitable cross suit and praying affimative relief in rescission of the contract and cancellation of the note. But although the cause was triable by the court, the court had the-authority to take the opinion of a jury on any specific-question of fact included in the issues made by the-pleadings. [Sec. 692, R. S. 1899, now sec. 1969, R. S.. 1909.] At the opening of the trial the plaintiff requested that the issues of fact be submitted to a jury,, and the court ordered that a jury come, thereupon came a jury “duly selected, tried and sworn well and truly to try the issues herein joined and a true verdict-render in accordance with law and the evidence.”' The jury heard all the evidence, but the issues to be submitted to them were not framed until the close of the evidence; then the court framed two issues which practically covered the whole case and submitted them-to the jury to answer, yes or no, as they might find' the facts from the evidence. The verdict of the jury was in favor of the plaintiff on both issues. It was-not a unanimous verdict, ten only concurred therein. In the decree the fact of the submission of the issues-to the jury and the answers of the jury to the questions-submitted are recited, but the court goes on to make-its own findings of the facts and bases its judgment on its own findings.

The record shows that the defendants .objected' in the beginning to the submission of the issues to a. jury, yet they did not except to the ruling of the court ordering a jury, and they made no objection to the trial proceeding in the presence of the jury before-the issues were framed. In open court it was stipulated in writing that: “If any of the issues in either or both of said causes be submitted to a jury, all other issues, if any, in either of said cases may be heard and determined by the court at the same time and upon the same evidence.” Thus it was stipulated that whilst the evidence bearing on the issues that might be submitted, to the jury was being heard, the court at the same time was to hear all the evidence on all the issues. Appellants now say it was error to have waited until the evidence was all in before framing the special' issues to be submitted to the jury. Appellants’ theory is doubtless derived from the ancient chancery practice which in this particular was more dilatory and cumbersome than the modern practice under the code.. [2 Daniell’s Ch. Pl. and Pr. (6 Ed.), *1071.] Our statute confers on the court trying an equity cause authority to take the opinion of a jury on any issue of fact involved, but it does not prescribe when the issues to be submitted to a jury are to be framed,, whether before or after the evidence is heard, but leaves that matter to the discretion of the chancellor. It is very good practice to have the jury present from the beginning to the end, so that they may hear all the evidence. And after the evidence is all in, the court is usually better prepared to select the issues on which it desires the opinion of the jury than it would have been before it had heard the evidence. Although a jury may have been impaneled and sworn and present during the hearing of all the evidence, yet if at the end the chancellor concludes that he does not care to have their opinion, he doubtless may dismiss them without submitting any issue to them. After all,, the verdict of the jury in such a case is merely advisory. [Bronson v. Wanzer, 86 Mo. 408; Keithley v. Keithley, 85 Mo. 217.] It has been held that the verdict of a jury in such case is not a subject for examination on an appeal. [Weeks v. Senden, 54 Mo. 129.] The taking of the opinion of a jury is a matter so entirely in the discretion of the chancellor that no error can be predicated on the fact that he did not frame the issues to be submitted to them until they had heard all the evidence.

It is also insisted by appellants that the constitutional amendment allowing nine of a jury “in a civil action” to render a verdict does not apply to a case of this kind. Whilst in legal nomenclature it is more accurate to say “suit in equity” and “action at law,” yet under our Code of Civil Procedure, which was in force long before the constitutional amendment referred to was adopted', it is declared: “There shall be in this State but one form of action for the enforcement or protection of private rights, and redress or •prevention of private wrongs, which shall be denominated a civil action.” The provision of the constitutional amendment applies therefore as well to a jury .called by a chancellor as to one in the trial of an action at law.

II. This transaction occurred in St. Louis in September, 1902. At that time defendant Forman was president of the Fourth National Bank of St. Louis and Browning was a director in the bank. Davis was a customer of the bank, that is, a depositor, having at that date about $10,000 on deposit. Davis and Browning boarded at the same hotel, a pleasant social acquaintance sprang up between them, visits and social pleasures were exchanged between them and their wives. Forman occasionally visited Browning at the hotel, and on one of his visits he was introduced by Browning to Davis. Plaintiff’s testimony tended to prove that it was at the solicitation or suggestion of Browning that he became a depositor in the Fourth National Bank, in June, 1902. Plaintiff as a witness in his own behalf testified as follows: “Q. State to the jury what conversation, if any, you had with Mr. Browning prior to the 11th of September, 1902, relative to the purchase by you of stock in the National Bank of Commerce in Kansas City? A. Mr. Browning told me that he and Mr. Forman owned some of the stock of the National Bank of Commerce in Kansas City, that they regarded it very highly as an investment, and in fact, had none of their stock for sale, but he suggested that if I wanted to make a good investment he would recommend the National Bank of Commerce of Kansas City; in his opinion that it was worth four hundred dollars a share, although it might be bought for less. The reason that he thought it was worth four hundred dollars a share was that Mr. For-man had been national bank examiner, . and told me that in his capacity as national bank examiner they had great hidden assets. I think a million dollars, that was not disclosed in their statement — a million dollars hidden assets not disclosed in their printed statement, and suggested my buying some of the stock. I then asked' him where the stock could be bought, as I had never bought any bank stock in my life. He said it. was very difficult to obtain, in fact, there were very few transactions made in the National Bank of Commerce. That he and Forman had some stock, but it was pooled, and that they had a profit at that time, I think he said, of ten thousand dollars, and that they thought very highly of the stock and would not part with any of their holdings at all. I then said, How am I to get any of the stock, if you do not know where it can be bought? Well, he said, there is an old German down here in South St. Louis that occasionally comes in the bank and we have been trying to buy his one hundred shares of stock for some time, but have failed to buy it by reason of the price asked. Now, he said, it might be possible Mr. Forman could buy that hundred shares of stock for you. He said, I would suggest your seeing Mr. Forman, drop in there in the course of two or three days and have a talk with Mr. Forman about buying these one hundred shares of stock belonging to the old Dutchman — he did not mention any name — in South St. Louis. In the course of two or three days, at the solicitation of Mr. Browning, I called on Mr. Forman, told him that Mr. Browning had sent me down to talk with him with reference to one hundred shares of stock owned by this old Dutchman. Mr. Forman said, ‘Yes, there is an old fellow down here by the name of Sellner that has got one hundred shares of that stock, but I don’t know whether I can buy it or not. I will see him and see what I can do for you.’ He said, ‘I think it is a good investment, Davis, and if you can buy it I would urge you to take it.’ I said, ‘All right, suppose you see this 'man.’ In the course of a couple of days he rang me up in my office and asked me to call down to the bank. I called at the bank. He said, ‘I have seen Mr. Sellner, and he wants three hundred and sixty dollars a share for that stock. Now, Davis, that stock, in my ■opinion, is worth four hundred dollars a share. I was national bank examiner and examined that bank on several occasions, and I know what I am talking about, and I would urge you to buy that stock as an investment;’ and I said, ‘Is that as low as it can be bought?’ He said, ‘Sellner will not sell for less than three hundred and sixty dollars a share.’ I said, ‘Mr. Forman, if you think it is a good investment I will be guided by your judgment in this matter; you go ahead and buy these hundred shares of stock as cheaply as you can.’ He said all right.'

“Q. What if anything, did Mr. Forman say to you about his own stock? A. He told me that he and Browning owned stock in it, but none of their stock was for sale. If he told me that once he told me that twenty times. Q. Said what? A. If he told me that once he told me twenty times that their stock was not for sale. Q. Proceed. What was done after you told him to buy that stock as cheaply as he could? A. Two days afterwards he called me up over the ’phone in my office and asked me to come to his office. I Went there. He says, ‘Mr. Davis, I bought that stock for you and had to pay three hundred and sixty dollars a share for it.’ ”

Continuing, the witness said: “He said,’ ‘I sent the certificate over to Kansas City and had it made out- in your name and here it is now, you indorse it in blanks here;’ and I said, ‘How much margin— what deposit do you want here on this?’ and he sug-. gested five thousand dollars, I gave him my check for five thousand dollars, and the matter was closed so far as the purchase of the stock was concerned. . . . He drew up a note for $31,000 payable to the Fourth National Bank, which I signed. At the end of thirty days I paid off $1000 leaving an even $30,000.”

The stock was left with Mr. Forman, president of the bank, as collateral security. Witness went on to say that a few weeks after the transaction he noticed in a Kansas City paper that the stock was' quoted at three hundred and thirty-five or three hundred and forty dollars, and he called Mr. Forman’s attention to that fact, whereupon Forman said the quotation was only nominal, that it was down now, but would .go up again; that he was in constant communication with the president of that bank, who did not make a move without advising him; that they were going to raise the dividend from twelve per cent, as it was then, to sixteen per cent, and were going to double the capital stock. Witness did not learn until August, 1905, that the stock he bought was owned by the defendants, although he in the meantime met Mr. Forman frequently, probably once or twice a week; during all that time Forman kept on saying that the stock was a most excellent thing to keep, and that none of his own stock was for sale. In August, 1905, after he had heard that it was their own stock that defendants had sold him, witness called on Mr. Forman at the bank. “I said, Mr. Forman, I am not altogether satisfied about that National Bank of Commerce stock in Kansas City, whose stock was it that I bought? He was very much embarrassed indeed and for a second did not say anything; finally he said that was your friend Browning’s stock. ‘I understood you to say it was Sellner’s stock down here.’ ‘0 well,’ he says, ‘I did have to see Sellner about it.’ Well that is about all that was said then. I then called on Mr. Browning a very few minutes afterwards, taking a gentleman friend along with me (Mr. Woodward) and asked Mr. Browning in his office the same question. I said, ‘Browning, whose stock was that Forman sold me, that National Bank of Commerce stock?’ ‘Well now,’ he says, ‘I don’t know/ ‘Why,’ I said, ‘I understood Forman to say it was Sellner’s stock, old man Sellner’s stock.’ He said, ‘Well now, I will tell you Davis, it was either old man Sellner’s stock, or else it was Dave Sommers’s mother-in-law; they were both selling stock about that time.’ ” Mr. Woodward testified substantially to the same effect in regard to this conversation with Mr. Browning. The plaintiff further testified that soon after he returned to his office Mr. Browning called him over the telephone saying he wanted to see him, but plaintiff answered that he did not care to see Mr. Browning except in the presence of his (plaintiff’s) attorney.. In a few minutes Mr. Browning called at plaintiff’s office saying that he had called to talk with him personally about the matter, but plaintiff refused to talk until he could have the presence of his attorney, whom he then called over the telephone. When the attorney appeared (according to plaintiff’s testimony) plaintiff stated the whole transaction to Mr. Browning substantially as he had just testified, to which Mr. Browning replied that he would not say but what that was the truth, but he said that he did not want any trouble and if a few hundred dollars would cut any figure he was prepared to offer. “I think he said eight hufidred dollars/’ On objection of defendants that testimony was ruled out as relating to a proposed compromise. Witness was then asked: “Q. What did he say, Mr. Davis, if anything,' about as to whose stock you got? A.' He said I came over to tell you the truth about that transaction; that stock belonged to me and Mr. Forman; it was in Mr. Forman’s name, but half the stock was mine and the other half was-Mr. Forman’s.” Plaintiff’s attorney was a witness and testified to certain conversations he had with the defendants after the matter had been placed in his hand's, relating to his own acts as counsel; when asked to state what was said at the meeting above mentioned between the plaintiff and Mr. Browning at the plaintiff’s office, he said being counsel in the case he preferred not to be witness also except in reference to his own interviews-with the defendants, and would therefore prefer not to testify as to what occurred at that interview unless counsel for defendants would ask him for his testimony on that point, but they did not ask him about that. He testified that before bringing this suit he went to the office of Mr. Forman and tendered him $3600, which was the amount of dividends plaintiff had received on the stock up to that time, and tendered also the certificate of stock, that is, the certificate of stock being already in Mr. Forman’s hands as collateral to the note, the attorney authorized him to keep it and demanded payment of the amount plaintiff had paid him for the stock and interest, all of which Mr. Forman refused.

The testimony for the plaintiff as to the value of the stock was to the effect that at the date of the purchase its value in the market was not more than $350, although in July previous it had reached a point when some was sold for $360, but since July it had declined and had continued to decline, with some fluctuations, from the date of the sale, September 11,1902, to the present time; it was not listed in the Stock Exchange of St. Louis and there was no Stock Exchange In Kansas City, bnt its market value was better known there than in St. Louis.

At the date of this transaction the defendants •owned 205 shares of this stock of which 100 shares were sold to the plaintiff as above stated and about "the same time they sold the remaining 105 shares to a Mr. Traverse at the same price and under eircum■stances (according to testimony on the part of plaintiff) very like those under which the sale to plaintiff was made, except that Forman told Traverse that it was Browning’s stock, that he, Forman, had such stock, but would not sell it, because it was worth more money than Browning was asking. He repeated to Traverse "the same story about the hidden resources of the bank.

Defendants testified in their own behalf and each •denied the allegations of fraud.

Mr. Browning’s account of the transaction was substantially as follows: Mr. Davis and witness boardi•ed at the same hotel and a pleasant hotel acquaintance grew up, no intimacy, no particular friendship, just pleasant acquaintanceship. Mr. Forman and witness had been friends for years and he used to call at the hotel to visit witness; Mr'.- Davis observing this, expressed a wish to form the acquaintance of Mr. For-man; accordingly on one of Mr. Forman’s visits to the hotel witness introduced the two gentlemen. Shortly after that Mr. Davis asked witness if he and Mr. For-man did not buy stocks, and asked what stocks he had; witness said, “I own some preferred stock of the Ely •& Walker Dry Goods Company and also some common stock of the same company; Mr. Forman and I jointly •own some stock in the National Bank of Commerce of Kansas City. ’ ’ He denied that he told Mr. Davis that - the stock was in a pool; he said he expressed his opinion that the Ely-Walker stock would go up to $140 and $200, and would not be surprised if the National Bank of Commerce stock would go to $400 a share, because, in the opinion of Mr. Forman, the president ■of the bank expected to increase the capital stock from one million to two million dollars and the new issue would sell for $200, which would be equal to $400 per share of the old; that the bank had deposits to the •amount of $30,000,000; he told Davis that none of his ■stocks were for sale; he did not tell Davis that there was an old German named Sellner who had some stock that he thought he might buy, never called Sellner’s name, never knew that Sellner had any stock. Davis said he would like to see Mr. Forman and talk with him about investments; “I said/Go and' see Mr. For-man.’ I made no suggestion as to what kind of stock I thought he ought to buy. I did not advise him to buy any stock.” Afterwards on account of illness witness •concluded to sell this stock, but Forman did not want to sell. Pending a consideration of the subject witness and Forman went to Kansas City to see the president of the bank and get his consent to the sale of their stock, not that it was necessary, but because that bank Vas a valuable customer of the Fourth National Bank and Forman wanted to keep on good terms with its president. They went to Kansas City, spent a day there, and returned; on the train coming home they ■decided to sell the stock, that was the first time the -stock was for sale. The stock, although owned by them jointly and equally, stood in the name of For-man alone. This witness’s account of the conversation-in his office between himself and Davis when Woodward was present was substantially as those two had stated except that instead of saying in answer to Davis’s question that the stock either belonged to Sellner or to Dave Sommers’s mother-in-law, he said: “I said it might have belonged to Sellner or might have belonged to Dave Sommers’s mother-in-law. I want to tell you why I said that. Q. Well? A. I had an understanding in a general way that the stock which Mr. Davis bought belonged to Mr. Forman and me, and we were to divide the profits, but I knew nothing about the transfer of tbe certificate, and I knew that the certificates belonged to Mr. Forman and me. We deposited it in different places in country banks as collateral, and I did not feel disposed to dispute Mr. Davis’s assertion that it belonged to Mr. Sellner. I did not know Sellner. I did not know whether he had or had not stock in the bank, and I thought possibly that Mr. Forman might have borrowed a certificate from Mr. Sellner or Sommers’s mother-in-law or Mr. Ferguson. Mr. Ferguson, I understood, had some stock, or Mr. G-ertz, and I though possibly he might have borrowed their certificate.”

And the witness’s account of the conversation between himself and Davis in the latter’s office after-wards on the same day when the attorney was present is substantially as stated by the plaintiff except that instead of saying “I have come to tell you the truth: about it,” he said “I have come to tell you the exact situation. ’ ’

Mr. Forman’s testimony was to the effect as follows: “He denied that there was any conspiracy or secret understanding between him and Mr. Browning to sell their stock to the plaintiff under the pretense that it belonged to Sellner or anyone else. His account of the transaction was that Davis came to him one day and in a casual way said he would like to make-some investment if witness knew something good. He said, ‘I understand you and Mr. Browning own some Bank of Commerce stock?’ I said, ‘We do.’ ‘Well,’' he said, do you know where I could buy any?’ I said,. ‘None of my stock has been offered for sale. I do not know of any for sale,’ and I took no interest further than to say I thought it was a good investment and the matter was dropped at that time.” Another time Mr.. Davis came into the bank and asked witness about the value of the stock. “I said to Mr. Davis that I had not. examined that bank for three or more years. I know-nothing of its financial condition of my own knowledge in my capacity as national bank examiner, but I did have information to the effect that there was considerable concealed profits, what it amounted to I could not say, only from hearsay.....I said they had Government bonds at par when everybody knew they were at a premium, and also stated that I had information that I considered reliable that they were carrying other stocks and bonds at much less figure than they were actually worth, but what amount I could not say.” A third time Mr. Davis came and again said he wanted some of that stock, and “I said, ‘Mr. Davis, I never offered any of my stock for sale and don’t know you •could purchase it’.” Shortly after that Mr. Browning suggested to witness the idea of selling a portion of their holdings, and in a few days theywent to Kansas City together and spent one day there; witness went on his own business, and did not know what Browning’s business was, did not see him during the day. Witness went to the bank in Kansas City and talked with the president about selling his stock, said he did not want to sell, but yielded to Browning’s importunities. After they came back from Kansas City witness ■called Davis over the telephone and told him if he still wanted to buy some of the bank stock he could sell him 100 shares for $360 a share, and Davis said he would take it; when Davis came down to the bank the transaction was completed. Witness had sent the old certificate to Kansas City and had it canceled and a new certificate made out in Davis’s name, and when Davis ■called to close the purchase he asked how much margin was wanted; witness said, $5000, for which amount Davis gave his check, and his demand note for $31,000 payable to the Fourth National Bank with the stock as security; the bank cashed the note and the monev was divided between witness and Browning. The certificate of stock in Davis’s name was shown him, with the request, “Sign here”, which was for an indorsement or assignment in blank, Davis signed and passed the certificate back to witness. That ended the transaction and witness heard no more of it until in August, 1905, when this trouble arose. When the attorney for plaintiff called on witness and made the tender and demanded a rescission, witness was indignant and denounced it a scheme to blackmail. Within a few days thereafter witness took up the note from the-bank and brought suit on it.

There is a slight discrepancy between the testimony of Mr. Browning and that of Mr. Forman as to the object of their visit to Kansas City; Mr. Browning testified that they both went on the business of selling-this stock; Mr. Forman testified that he went on his own business, but did not know for what purpose Mir. Browning went. But they both agreed that their conclusion to sell the stock was reached on that trip.

The testimony is quite voluminous, covering 200' printed pages, but the above statement condenses what we consider the most material parts on both sides.

III. When, as in this ease, the trial is before the chancellor on oral testimony, he sees and hears the witnesses, those interested and those uninterested, observes the manner and the tone of each witness, the manner of conducting the examination and of presentr ing the case to the court, and all the living effects of the trial, he is better prepared to pronounce judgment on the weight of the evidence than is an appellate-court who sees the ease only in light of the cold record.' We have gone over all this record and are satisfied to-leave the facts as the chancellor found them.

IV. Appellants contend that respondent, having-delayed three years to repudiate or rescind, is now-barred from any right to sue in equity on the alleged fraud, and they cite eases which show that under the-facts of those cases the plaintiff had acquiesced too long to be heard at last to complain. But those cases show that there were facts or circumstances to put the-party on inquiry and that inquiry would have led to discovery. In their argument counsel for appellants-treat this ease as if the fraud complained of consisted in the fact that defendants misrepresented to plaintiff' the value of the stock and sold it to him at a price higher than it was worth. If that were all the plaintiff had to complain of the argument would he sound, because after he became the holder of the stock he could have discovered by ordinary care that it was not worth-what he had paid for it; in fact, he did notice in a Kansas City newspaper a few weeks after his purchase that the stock was quoted at $340' and spoke to Mr. Forman about it, and Forman reassured, him. If the transaction had been fair otherwise, he would have had no right to complain that he paid more for it than it. was worth. Value of such a commodity is to a great extent a mere matter of opinion, and unless there is. some fact or circumstance making a misrepresentation,, by the seller to the buyer, concerning the value, a fraud, it will ordinarily not be so regarded in law. But when the seller purports to give his opinion, knowing-the buyer relies on it, and at the same time conceals from the buyer a fact which he knows would cause the-buyer to distrust or to place less confidence in the opinion given, the law does condemn the act and will relieve against it. In this case the plaintiff is not complaining merely of the fact that the defendants misrepresented the value of the stock, but the gravamen of the complaint is that they fraudulently concealed from him the fact that would cause him to distrust their-statements in regard to the value. If the plaintiff’s testimony is true he knew nothing of the value of the stock except what the defendants told him and they knew that he was trusting them because he believed that they were disinterested. They said to the plaintiff (if his story is true): "We own stock in that bank but it is not for sale; we will not sell our stock because we have private information that causes us to believe that the stock will advance to $400 a share; Mr. Forman while he was United States bank examiner discovered that that hank held a large quantity of undisclosed assets, and he has kept in close communication with the president and knows his purpose to increase the capital stock from one million to two million dollars. Thus leading the plaintiff to believe that he was getting information that was not attainable by the public and inducing him to part with his money to purchase their stock at a price which was at that time at least ten dollars a share higher than they could otherwise have sold it, higher than it had ever been except in the preceding month of June, and higher than it has ever been since. There was nothing to put the plaintiff on inquiry as to the ownership of the stock; he had no notice to cause him to doubt that it belonged to Sellner, and under the circumstances he had a right to believe that if the defendants had made a mistake in their estimate of the value, present or prospective, it was an honest mistake and would result as much in their disappointment as his own. In August plaintiff obtained information that led him to suspect that defendants had sold him their own stock and he immediately went to them to inquire as to the facts and these suits were started in a few days thereafter. Plaintiff can not therefore be condemned for waiting too long to appeal to the court for a rescission.

But if defendants were guilty of the misrepresentations or concealments charged they are in no position to complain of the plaintiff for having too long trusted in the truth of their statements. The following quotation from Morawetz on Corporations, see.. 100, cited in respondent’s brief, very clearly states the law: “Hence, it was said by the Lord Chancellor (Chelmsford), in the House of Lords, ‘It appears to me that when once it is established that there has been any fraudulent misrepresentations or willful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to he relieved from it, to tell him that he might have known the truth by proper inquiry. He had a right to retort upon his objector, ‘You at least, who have stated what is nntrue, or have concealed the truth, for the purpose of drawing me into a contract, cannot accuse me of want of caution, because I relied implicitly upon your fair-' ness and honesty.’ ” To the same effect also is 2 Pomeroy Eq. Jur., sec. 897. The doctrine is also fully expounded in Judd v. Walker, 215 Mo. 312.

Y. Plaintiff collected dividends on the stock during the three years that he held it before discovering the alleged fraud, and when he did make the discovery h.e tendered the amount, together with the certificate of stock, to defendant Forman, and demanded rescission, which defendant refused, and the suits followed within a few days. After the suits were filed he collected two more dividends and these he stated at the trial he held subject to the order of the defendants on a rescission of the contract. The decree in the case •covers those dividends and credits them to the defendants in the accounting. The plaintiff is not estopped by that conduct. After he had tendered the dividends and the certificate and demanded a rescission and had been refused, he was justified in collecting the further •dividends and holding them at the disposal of the court.

YI. Appellants contend that the transaction as stated by Mr. Davis is so improbable that it is unbelievable. If Davis’s story were as appellants’ counsel understand it to be, it would sound very improbable, but we do not so understand it. According to the understanding of appellants’ counsel the case Davis makes is this: Davis, acting on Ms own suggestion, approaches Forman and engages him as his agent to purchase for him 100 shares of stock at $360 a share, which involves an outlay on the agent’s part of $36,000, for which the agent is to have no compensation, and as to all of which Browning has no knowledge or information. The idea is that the mere fact that Davis was not called on to pnt up the $36,000 to he used in the purchase, showed that he could not have understood that Forman was to buy the stock from a third person. That view overlooks other influential facts. Davis was a depositor in the bank with $10,000 to his credit; the stock, even if it was not worth what he agreed to pay for it, was undoubtedly good collateral for at least $30,000, as the action of defendant Forman shows; for he, as president of the bank, named the margin required, and took the stock for the bank as collateral for $31,000; his loyalty to his bank cannot be questioned. The bank was in business to lend money on good security at a fair rate of interest. This was not a transaction between two individuals entirely dissevered from their business relations, but was to be conducted in the bank of which one was the president and the other a customer. It is not, therefore, unbelievable that the parties had it in mind to close it as it was closed, by the payment of as much money as the president of the bank thought necessary to ask and the bank making a good loan. Mr. Forman testified that it was his own proposition to lend $31,000 on the stock as collateral.

The fact that defendant Forman so managed the business as that the original certificates which stood in his name did not come under the eye of the plaintiff Davis, but were sent to Kansas City and a new certificate issued in Davis’s name, is a fact concerning which said defendant while testifying thought some explanation was due. His explanation was that in case a dividend should fall due immediately it was liable to be paid to the party in whose name the stock had stood, “and I knew if Mr. Davis was a business man he would not accept the certificate. I told him and I suggested that I would send it to Kansas City for transfer, and he assented and I had it done.” Why should Mr. Forman fear that Mr. Davis would refuse to accept a transfer of the old certificate lest, between the transfer of it to him and his sending it to Kansas City to be transferred, a dividend might suddenly fall due and it be paid over to the original holder, when Mr. Forman was himself the original holder! When we reflect that it is but one night’s journey by mail to Kansas City from St. Louis the reason given does not seem sound; but if Mr. Davis had objected to taking a transfer of the original certificate lest a sudden dividend be declared and be paid over to the original holder before notice of the transfer could reach the bank,the objection could have easily been overcome by Mr. Forman’s disclosing the fact that he was the owner of the stock; the relations between the parties were then on such a footing that all fear would then have been allayed. If, however, the object was to keep Davis from knowing whose stock it was he was buying the course pursued was reasonable.

VII. It is contended that as to Forman, he being a mere gratuitous agent, if he is liable at all, it is for misfeasance as agent and the plaintiff’s remedy is at law. And as to Browning, since he knew nothing of the transaction between Davis and Forman, he is not liable at all. Those contentions rest on the understanding the learned counsel for appellants have of the facts as stated in the foregoing paragraph, but which understanding as we have pointed out comprehends but a partial view of the facts, overlooking the most important ones.

VIII. Appellants say that if it be conceded that the defendants made false representations to the plaintiff the misrepresentations were of a totally immaterial fact, that it was immaterial whose stock it was which Davis bought, and the representations as to its value were immaterial. The argument is that Davis wanted the stock and he bought stock of the kind he wanted, it was worth as much to him if he had bought it from one person as from another, his gain or loss was the same whether it was Sellner’s stock or that of the defendants. Again the appellants take a restricted view of the evidence and overlook all of it that goes to show that Davis had a right to rely on the statements of these defendants as to the value of the stock. But we have already discussed that feature of the case. The fact that this was not Sellner’s stock might, under other circumstances, be immaterial, yet under the circumstances of this case it is material.

We find no error in the record. The judgment is affirmed.

All concur.


author: VALLIANT, J.

text:
    H. A. FORMAN, Appellant, v. GEORGE W. DAVIS.
    Division One,
    June 14, 1910.
    Appeal from St. Louis City Circuit Court. — Eon. Chas. Claflin Allen, Judge.
    Affdbmed.
   VALLIANT, J.

— The facts in this case are the same as those in the case of George W. Davis v. H. A. Forman et al., just decided, and reported at page 27 of this Report. For the reasons stated in the opinion in that case the judgment in this ease is affirmed.

All concur.