author: GRAVES, J.

text:
    LEANDER F. NICKEY and WARREN S. RANDALL, Appellants, v. C. H. LEADER.
    Division One,
    June 1, 1911.
    -1. LOST BILL OF EXCEPTIONS: Supply. Where the original bill of exceptions was filed the record was complete; and if after it was lost, and a copy, to supply the record, was filed, the supply copy relates back to the filing of the original and stands as and for the original.
    2. --: -: Prior and Additional Abstract. Appellant takes chances in printing an abstract, of a bill of exceptions where there is no such bill on file in the trial court; but where the bill of exceptions after being filed was lost, and thereafter appellant printed and filed his abstract from a copy, an additional abstract showing such matters and showing that he supplied the record by filing a copy of the bill, and which otherwise accords with the facts, should be received and considered by the appellate court.
    3. ABSTRACT: Supplementary. A supplementary or amended abstract -will not be permitted after the sufficiency of the original abstract has been challenged by respondent’s brief, if the original is so defective as to authorize a dismissal of the appeal.
    4. -: No Showing of Filing of Appeal. An abstract is not defective because it fails to recite that the case has been filed or docketed in the appellate court.
    5. ——: Appeal at Judgment Term: Judicial Notice. The Supreme Court takes judicial notice of the beginning of a term of circuit court, fixed by the statute to begin on a certain day; and where the record recites that the motion for a new trial was filed on a.certain day “by leave of court,” it will be held the court was in session on said day and that it was not in vacation; and it will also be presumed, where the record shows the court acted upon a day after the legal beginning of one regular term and before the legal beginning of another regular term, that the court was then in the regular or adjourned session of the term first named, and when a court once meets any adjournment to a later day makes such later day a part of the same term. Therefore, where the abstract recites that judgment was rendered on -April 18th, that a motion for new trial was filed on April 20th “by leave of court,” that the motion was overruled on April 24th, and that on April 25th, appellant filed his affidavit and bond for an appeal, it will he held that the affidavit and application for an appeal was filed during the term of the judgment.
    6. -: All the Evidence: Questions and Answers. In no case is the evidence required to be set out by questions and answers in the abstract, unless they are necessary to an understanding of the evidence. It may be set forth in narrative form. And in a law case it is not necessary to set out all the evidence unless a demurrer thereto is filed, but only so much of the evidence as is sufficient for the court to ascertain and determine the points for consideration. And in no law case will the appeal be dismissed because all the evidence was not set forth; for if it is not fairly preserved, the respondent has the right to file an additional abstract, and if the court finds such additional abstract necessary, it will tax the costs thereof against appellant.
    7. LIMITATIONS: Against Cotenant. Although a deed may in .law create a cotenancy, yet if one of the cotenants is in actual possession, claiming .the title against the others and the world, the ten-year Statute of Limitations will vest him with the title; but the testimony as to adverse possession of one cotenant as against the others must be clear and pointed. So that where the owner conveyed a tract of ground to plaintiffs, but claimed he did not convey the house and lot parceled out of it sued for, and thereafter rented the house and lot and collected the rents, and conveyed to defendants, who, with his three years’ possession, have been in adverse possession for ten years, under claim of exclusive ownership, plaintiffs cannot recover said house and lot, even though the deed to them, properly construed, conveyed an undivided half interest.
    8. -: -: Findings of Judge. The findings of the judge, sitting as a jury, in a law case, are binding upon the appellate court, the same as a verdict of a jury, if there is sub-, stantial evidence, such as the law requires, to support them.
    Appeal from Butler Circuit Court. — Eon. Jesse C. Sheppard, Judge.
    Affirmed.

      E. B. Lents for appellants.
    (1) Plaintiffs chain of title is clear and unbroken from the United States down to plaintiffs for all of the northeast quarter of the southwest quarter of section 10 -which, includes the land in controversy. This is not questioned. (2) The defendant has shown no paper title to the land in controversy. (3) Possession hy Marshall of the house and inclosed land, from the time he sold to Randall down to the time he put the Dunnings into possession of the land, was not adverse to his grantee Randall. The testimony all shows that neither knew where the true line was, and neither intended to claim anything beyond the true line. Under such circumstances Marshall’s possession was not adverse and the defendant, even though an innocent purchaser, cannot tack to his own possession that of Marshall’s. Wood on Dim., p. 581, sec. 271; University v. McCune, 28 Mo. 481; Haux v. Bat-teen, 68 Mo. 84; Huckshorn v. Harting, 81 Mo. 648; Keen v. Schmedler, 92 Mo. 516; Sldnker v. Haagsma, 99 Mo. 2Ó8 ; King v. Evans, 107 Mo. 487; Adkins v. Tomlinson, 121 Mo. 487; McWilliams v. Samuel, 123 Mo. 659; Ernstring v. Grlenson, 137 Mo. 597; such occupation will not work disseizin in favor of either. Crawford v. Ahrens, 103 Mo. 88; Pinch v. Ullman, 105 Mo. 255. In the absence of evidence of intention to hold adversely it will be presumed that the intention was to hold only to the true line. Hamilton v. West, 63 Mo. 73. (4) Marshall’s deed to Randall was for an undivided one half interest in and to the land conveyed. This deed was dated February 23, 1895. The other undivided one half interest in and to the said land remained in Marshall down to September 28, 1898, when he conveyed the same to. the plaintiff Nickey. So that from February 23, 1895', to September 28-, 1898, Marshall and Randall owned the said land as tenants in common. There is no evidence of any kind showing or tending to show an ouster by Marshall of his co-tenant Randall, nor of any intention on his part to oust his co-tenant. Hence Marshall’s possession was Randall’s possession and there could be no such thing as an adverse possession by Marshall' as against his co-tenant Randall until there had been an ouster of Randall by Marshall. The possession of one tenant in common is the possession of all. Bernecker v. Miller, 40 Mo. 474; Davis v. Givens, 71 Mo. 94; Warfield v. Lindell, 38 Mo. 561; Sutton v. Casselegi, 5 Mo. Ill; Rodney v. McLauglin, 97 Mo. 426; Long v. McD'ow, 87 Mo. 197; Stevens v. Martin, 168 Mo. 410; Peck v. Lockridge, 97 Mo. 559'. There is not a single fact or circumstance in evidence in this case showing or tending to show an ouster by Marshall of his co-tenant Randall.

      Ernest A. Green for respondent.
    (1) The judgment should be affirmed since appellant’s abstract of the record is nod a compliance with the rules of this court. The abstract proper and the bill of exceptions both wholly fail to show that the motion for a new trial was filed at the same term of court as that at which the judgment was rendered; the abstract proper and the bill of exceptions both also wholly fail to show that the motion for a new trial was filed and overruled in term time; they also fail to further fail to show that the affidavit for an appeal was filed and an appeal was granted during the same term of court as that at which the motion for a new trial was overruled. The abstract further fails to show that the case was ever filed in this court. Sec. 2048, R. S. 1909; Harding v. Bedoll, 202 Mo. 632; Clay v. Pub. Co., 2001 Mo. 665; Everett v. Butler, 192 Mo. 564; Harris v. Wilson, 199 Mo. 412; State v. Fawcett, 212 Mo. 729; Stark v. Zehnder, 204 Mo. 442; Hawks v. Hawks, 218 Mo. 670; Cooper W. & B. Co. v. Cornell, 131 Mo. App. 344; Novinger v. Railroad, 131 Mo. App. 337. (2) Even were the abstract of the record a compliance with the rules of this court, yet it is not sufficient for an examination of the ruling of the trial court on the whole case. Before this court will review the ruling of the trial court on the whole case, the full record must he before the court, including the questions and answers, in order that a complete understanding may be had of the evidence. Sec. 2048, R.' S. 1909; Rule 13 of this Court; Nash v. Hydraulic P. B. Co., 100 Mo.,App. 600; Moore v. Harmes, 123 Mo. App. 34. (3) The undisputed testimony shows that defendant is entitled to the possession of this house and lot by reason of the ten-year Statute of Limitations, i. e., he and his grantors have been in the actual, open, hostile, notorious, continuous and adverse possession of said premises, claiming title thereto under color .of title, against all the world, including these appellants, for .more than ten years preceding the institution of this suit. Hendricks v. Musgrove, 183 Mo. 300'; Peck v. Lockridge, 97 Mo. 549'; Campbell v. Laclede Gas Co., 84 Mo. 374; Hutson v. Hutson, 139 Mo. 235; Dunlap v. Griffith, 146 Mo. 283,- Whitaker v. Whitaker, 157 Mo. 353; 13 Am. and Eng. Ency. Law (1 Ed.), 1114; Warfield v. Lindell, 38 Mo. 561; LaPeyre v. Paul, 47 Mo. 586; 1 Cyc. 1074; Oglesby v. Hollister, 9 Am. St. 177; 1 Cyc. 1039.
   GRAVES, J.

— Plaintiff sues in ejectment for a small tract of land near the city of Poplar Bluff in Butler county, Missouri. The petition is in the usual form. Damages are charged to be $100, and monthly rents .and profits are fixed by the petition at $5 per month. The answer is the ten-year Statute of Limitations and a general denial. Reply a general denial.

Points are made as to the sufficiency of the abstract. It will suffice at his point to state that there was a trial before the court without the intervention of a jury and a general finding and judgment for the defendant. Prom this judgment the plaintiff has appealed., The points as against the sufficiency of appellant’s abstract we take first.

I. There has been tendered an additional abstract of record and with it an application for permission to file. This application together with the tendered additional abstract was taken with the case, so that the court has reserved the right to pass upon such application and additional abstract at this time. This additional abstract, so tendered, is dual in character, and both parts thereof deserve attention. In the first place, there is presented the abstract of a record of the circuit court supplying a lost bill of exceptions; and, secondly, there are presented certain amendments to the abstract of record as first pointed out and filed, which amendments go to matters other than the order supplying the alleged lost bill of exceptions. We gather that the bill of exceptions in the case had been misplaced or lost, but that a copy thereof was in existence. Whilst this situation prevailed the printed abstract of the record was prepared. Respondent filed his additional abstract of record, and in it suggests that there is no bill of exceptions on file in the case, but charges that there is pending and undetermined a motion asking the circuit court to supply the bill of exceptions. Respondent then suggests certain things in the proposed supply bill of exceptions, which does not appear in the abstract of record. The motion to supply the bill of exceptions and all the proceedings thereon were taken after the first abstract of record was filed here.

This question is not strongly urged here by the respondent, but we take it that even if were there would be no substance therein. When the original bill was filed the record of the case was complete. When the supply bill was filed it related back to the filing of the original and stood as and for the original, and this additional abstract in this regard only supplies a matter not in existence at the time the first was printed. Of course, counsel take chances in printing an abstract of record without there being on file a bill o£ exceptions, but if tbe supplied bill of exceptions accords with their abstract the parties should be entitled to show such fact. As to this point the additional abstract should be and is received and considered.

The second question is not of 'such easy solution. Respondent, in his brief filed, challenges the sufficiency of the printed abstract in certain particulars, and by the proposed amendments, these suggestions are met. This we have held cannot be done. In the case of Harding v. Bedoll, 202 Mo. l. c. 637, after reviewing our former cases on the subject of supplemental abstracts, we said: “The foregoing seems to be the rule as to supplemental abstracts of record. To say the least they should not be filed without leave of court and'if so filed will not be considered. We will add further that if for any reason the original is so faulty in stating material facts of record as to authorize the sustaining of suggestion to dismiss the appeal or writ of error, no leave should be granted after the opposite party has served his brief or other writing calling attention to the defects. To hold otherwise, would, as Judge Gantt practically says, place a premium upon negligence in the preparation of abstracts.”

The amendments offered in this case were tendered to meet the objections in a brief filed by respondent. Upon this question we think the Bedoll case properly states the rule. There is then left for consideration the fact as to whether or not the abstract of record unamended is sufficient, for under the authority of the Bedoll and subsequent as well as prior cases, a supplementary abstract should not be permitted after challenge has been made, where the original is so defective as to authorize the sustaining of a suggestion to dismiss the appeal. We will therefore consider the record as to the supplied bill of exceptions, and then determine the sufficiency of the abstract of record without the proposed amendment.

II. It is urged that the abstract of record failed to show (1) that the motion for new trial was filed at the same term of the court at which .the judgment was rendered, (2) that the abstract of record wholly fails to show that the motion for new trial was filed and overruled in term time of the court, (3) that such abstract of record fails to show that affidavit for appeal was filed and appeal granted at the term of the judgment, or at the term when motion for new trial was overruled, and (4) that the abstract fails to show that the case was ever filed in this court.

That the original abstract of record was exceedingly loosely prepared admits of no doubt. In view of all that has been written upon the subject of abstracts of record it is inconceivable how so many questionable abstracts reach -this court.

In Harding v. Bedoll, supra, we undertook to outline in general terms what should be shown by the abstract of record. Upon some questions this opinion must be read in the light of what had been previously said upon the questions involved.

(a). In the case at bar it is urged that the abstract of record fails to recite that the case had been docketed in this court. In other words that it failed to state that a short transcript of the judgment and order granting the appeal had been filed in this court. This question was decided adversely to the position of respondent prior to the Bedoll case in State ex rel. v. Smith, 172 Mo. l. c. 458, and has been since so decided against him. [Coleman v. Roberts, 214 Mo. 634; Bank v. Hutton, 224 Mo. l. c. 51; Godfrey v. Godfrey, 228 Mo. l. c. 512; Booth v. Railroad, 217 Mo. l. c. 715; Hanks v. Hanks, 218 Mo. l. c. 676.] In the Booth case, supra, we said: “It is true the letter of the statute applies as well to a short as it does to a long transcript, yet its reason and spirit must be looked to in its application. We have held in two recent cases that when the cause is here in the short form, that is, a certified copy of the judgment and of the order granting the appeal, we would not dismiss the appeal because, the abstract did not show the order. Pennowfsky v. Coerver, 205 Mo. 136; Coleman v. Roberts, 214 Mo. 634.]”

The more recent cases cited above follow this trend. This question must therefore be ruled against the respondent.

(b) It is also urged that the abstract fails to show an affidavit for appeal was filed and an appeal granted either during the term of the judgment or the term at which the motion was overruled. Upon this point the abstract reads:

“Now on this 18th day of April, 1907, come again the parties hereto by their respective attorneys, and this cause having been heretofore by tlie court taken under advisement and being now fully advised in the premises, doth announce his findings for the defendant.
“It is therefore considered, adjudged and ordered by the court that the defendant take nothing by their action and that the defendant have and recover of and from the plaintiffs their costs and charges in this behalf expended.
“Now on this 20th day of April, 1907, come the plaintiffs and by leave of court file their motion for a new trial herein.
.“Now on this 24th day of April, 1907, come the parties by their attorneys and plaintiffs’ motion for a new trial is by the court taken up and considered, and the court doth overrule the same.
“Now on this 25th day of April, 1907, come the plaintiffs and file their affidavit and bond for appeal which said bond is approved and the appeal is granted to the Supreme Court and plaintiffs are granted ninety days in which to prepare and file bill of exceptions herein.”

The abstract in terms does not charge this to have been at the April term of the court. It fixes the dates as in April. The then law of which we must take judicial cognizance fixed an April term of court for Butler county. Of the beginning of this April term we take judicial notice. Of the beginning of the next term we take judicial notice. We therefore know that between the beginning of the April term of the court and the beginning of the next term these entries were made. It also appears that this motion was filed “by leave of court” which does not indicate vacation, but indicates that the court was in session. In the next two orders the record indicates that the court acted, not the judge thereof in vacation. From the abstract of record it is apparent that the court was in session, but whether at the April term thereof or a.t a called session thereof is not shown as a matter of fact. This becomes important in this case because of the peculiar recitation in the record. The entries differ from those in Harding v. Bedoll, 202 Mo. l. c. 631, and from those in the later case of Milling Co. v. St. Louis, 222 Mo. l. c. 310.

In the latter case, Lamm, P. J., following the Be-doll case, said: “It is a marvel that excellent counsel will not heed the interpretation given of our rules and warnings .judicially iterated and reiterated. We do not interpret our rules otherwise than equitably. For an instance, by an implication from data furnished in the abstract, other data might be added and rounded by supplying an element omitted. But there is nothing in this abstract from which we can see that the entries referred to were made at the judgment term of the circuit court of St. Charles county, or at any term at all.” *

The record in the case at bar more nearly falls within the views expressed in the more recent case of Bank v. Hutton, 224 Mo. l. c. 51, whereat we said: “The same disposition must be made of points a and b. This because we take judicial notice of the sitting of the Jackson Circuit Court at terms prescribed by statute — i. e., when its terms commence. The record shows that the motion for a new trial was filed within four days of the judgment. From the date of its filing we judicially know it was not at the next term after judgment.. The question then is: Had the court risen for the judgment term until court in course— was it in vacation when the motion was filed? The record affirmatively shows it was not in vacation. We find the following in the abstract of the record proper: ‘An entry of an order was made of record on said day by said court reciting the filing of said motion for a new trial.’ The record proper shows that the motion for a new trial was ‘continued’ to the April term. The April term, we judicially know, was the next term after the date of the filing of the motion. When the abstract narrated that ‘said court’ entered an order reciting the filing of the motion and ‘continued’ the motion, those orders, ex vi termini, presuppose the court in session and exclude the idea of vacation. If the court was in session it was bound to be at the judgment term or at the next term, ergo (by exclusion) it was the judgment term — quod erat demonstrandum.”

The latter portion of this quotation may appear to be broad language, but when the statute and the rulings are considered we think not. When the court once meets then any adjournment to a later day makes such later day a part of the same term. [Fannon v. Plummer, 30 Mo. App. 25.]

The same should be true where the sheriff under order of the judge under section 3869, Revised Statutes 1909, adjourns the term. However the statute, section 3871, Revised Statutes 19091, then speaks of a special term of the circuit court, which may be called by the judge thereof “whenever any person charged with an offense shall be confined in jail two months before the regular term,” and authorizes the judge under certain, conditions to call the court in special session for the trial of such prisoner. This section requires ten days’ notice. In this case all action upon the part of the court was taken in less than ten days- and this precludes the idea of a special term. Where the record shows that the court acted upon a day after the legal beginning of one regular term and before the le¡gal beginning of another regular term,- then it should be presumed that the court was in the regular or adjourned session of the term first named. In either event it would be the same term. If not, the burden -should be on the party raising the objection to show from the record that the particular entry was made at a special term as described in section 3871, Revised Statutes 1909, supra. This because a special session is only authorized for the one purpose, and is out of the usual course of court procedure.

We are inclined to the view that when all the cases are considered the abstract can be sustained upon this point. What is here said applies with equal force to the other two objections named above.

III. It is next insisted that the record is deficient in that it does not properly set out all the evidence. This contention seems to be based upon the idea that the questions and answers must be set forth. To start with, in a case at law, it is only necessary to call attention to such matters as bear upon the points urged for reversal, unless a demurrer to the testimony is interposed and that point pressed here. If a demurrer to the testimony is interposed then all of the evidence in the case is necessary for the consideration of that question. In this case we find no such condition. No demurrer was interposed and the case might be considered here upon less than all the testimony. In other words a case might be presented where the sole question was the propriety of giving or refusing certain instructions. In such case it would be sufficient to say that there was evidence pro and con upon the question involved in the instruction.' It is only in equity-cases that we require all the evidence, but even in such cases we do not require the questions and answers. If it be stated in narrative form it meets our rule and subserves the ends of justice. Of course in all cases we require questions and answers, if such are necessary to the understanding of the evidence. We require all of the evidence in equity cases, because the hearing in this court is practically a trial de novo barring our consideration for the judgment of the chancellor, nisi, who faced the witnesses. However, under no circumstances is his judgment absolutely binding upon the conscience of this court. In law cases, excepting the proposition that we must pass upon the sufficiency of the evidence, as challenged by a demurrer thereto, we may consider a case without all of the testimony.

This, however, is adrift in the ease at bar. Here, all the evidence is purported to be set forth in narrative form, and if not fairly set'forth the opposite party has the right'to file an additional abstract. If such additional abstract is found to have been necessary the statute affords a remedy as to costs thereof.

The abstract of the evidence may be scant, but it sufficiently complies with the rule and practice of this court. This objection is therefore everruled.

IV. This brings us to the merits of the case. G-oing to the merits one proposition will suffice. Under a deed from John B. Marshall to W. S. Randall made in 1895, it is contended by appellant that Marshall deeded to Randall an undivided half interest in the land in question; The description in this deed and the deed itself for that reason is questioned by respondent.

But for the purposes of the point in mind we may, •without so deciding, hold that the description was sufficient, yet the judgment nisi was right.. Be it conceded as contended by appellant that this deed of 1895 so operated as to make Marshall and Randall co-tenants,' yet under the facts in evidence the trial court could have rightfully held that the Statute of Limitations had run. The land in question has a house upon it. Mar-' shall claimed that he did not sell the house and lot (the premises in dispute) to Randall. After he made the deed to Randall for the larger tract, by the description of which it is contended the land in dispute was conveyed, it appears that Marshall claimed as his own this property. He rented it and collected, the rents. Randall neither asked for nor received any rents for nearly three years. Marshall then sold the disputed hoiise and tract of land to Dunning in 1897, who went into possession and who lived in the house to the date of his death. His widow continued to live there until 1903, when the title passed to respondent Leader. There is no question that the Dunnings and Leader have claimed the property and held it as their own. Their adverse possession is conceded. It is urged, however, that, inasmuch as the deed from Marshall to Randall had the effect of creating a joint tenancy between those parties, Marshall’s possession was the possession of both. The general rule is that the possession of one joint tenant is the possession.of all. This ■rule has its exceptions. Although the deed may in law create a joint tenancy, yet if one of the joint tenants is in actual possession, claiming the title as against the co-tenants and the world, the Statute of Limitations will inure to the benefit of such claimant. [Warfield v. Lindell, 38 Mo. 561; Dunlap v. Griffith, 146 Mo. 283; Whitaker v. Whitaker, 157 Mo. 342; Hendricks v. Musgrove, 183 Mo. 300.]

It is practically conceded in this case that if the holding of Marshall was adverse to his alleged co-tenant Randall, then such holding, added to the holdings of Marshall’s subsequent grantees, would make up the full term of ten years prior to the institution of this suit. The case is one at law. It was tried before the court without the intervention of a jury. In such case the judgment and findings of the court upon matters of fact stand before this court in the same light as the verdict of a jury. In other words, if there is evidence to sustain the findings, such findings of fact, like the verdict of a jury, will not be disturbed by this court. In the present record there is ample evidence upon which the trial court could have found adverse possession for the period of ten years, as pleaded in the answer. Of course the testimony as to the adverse possession of one co-tenant as against his fellows must be clear and pointed. In the case at bar there are many facts in evidence strongly tending to show that Marshall claimed the absolute ownership of this house and small tract of land. In fact, it appears that only recently has a contrary claim been made. The court was authorized to find for respondent upon this theory of the case alone, and having so found we will not disturb the judgment.

This obviates a discussion of the uncertain description in some of the deeds in evidence. Let the judgment be affirmed.

All concur.


source: Caselaw Access Project

author: BROWN, C. PER CURLAM.

license: Public Domain

text:
    THE CITY OF ST. LOUIS v. HARRY YOUNG and HENRY HENNING; HENNING, Appellant.
    Division One,
    June 1, 1911.
    1. ABSTRACT: Bill of Exceptions. Although the appellant’s abstract of the record states generally that a bill of exceptions was signed and timely filed, yet if it does not further show that some matter of exception was preserved in the bill, nothing but the record proper can be considered on appeal.
    2. -:--: Recognizance: Effect of Ordinance. The effect of certain ordinances relating to matters of practice before a police judge, in a case where judgment was rendered on a recognizance bond given in that court against a surety, from which an appeal was taken to the St. Louis Court of Criminal Correction, cannot be considered on appeal from a judgment against said surety rendered by tbe latter court, where it does not appear from the abstract that sucb ordinances were before tbe court, either by averment in tbe scire facias writ or tbe return, or as evidence.
    3. ORDINANCES: Judicial Notice. Tbe St. Louis Court of Criminal Correction does not take judicial notice of tbe ordinances of tbe city.
    4. RECOGNIZANCE: No Evidence: Presumption. Where there is no bill of exceptions preserved in tbe abstract, it will be presumed, in an appeal from a judgment against a surety on an appearance bond given in a police court, that tbe evidence showed tbe necessary authority in tbe police court to take tbe recognizance in tbe form stated in tbe writ, so far as sucb presumption is necessary to sustain tbe judgment against tbe surety, and also that tbe evidence corresponded with tbe writ, and was sufficient, if the statements in tbe writ are sufficient, to support tbe judgment.
    -: Appearance on Day Named: Continuance. Where tbe writ recites that tbe principal in the recognizance was required to appear on tbe 17th day of September, then and there to answer a charge of violating an ordinance of said city, “and shall not depart thence without leave first being obtained from said police justice,” and that on said appearance day tbe bearing was continued to tbe 25th day of September, on which day be failed to appear and the recognizance was forfeited, it will not be held that tbe recognizance could be forfeited only for bis failure to appear on the day of tbe bearing, tbe 17th, nor that having appeared on that day it bad performed its office and be was discharged. Tbe recognizance is an obligation that be would remain subject to tbe order of the court until bis trial took place or be was otherwise finally discharged.
    6. -: Till Trial or Discharge: Sec. 2800.- When suieties on a recognizance undertake that a defendant shall appear before a court at a term specified for trial, their obligation, under Sec. 2800, R. S. 1899, is that be will remain in court for all tbe purposes of bis case, and that when tbe case is continued no new bond is necessary.
    Appeal from St. Louis Court of Criminal Correction. •— Ron. Wilson A. Taylor, Judge.
    Affirmed,

      G. Ornele Bishop for appellant.
    (1) The bond or recognizance taken by tbe officer in charge, at tbe time, of tbe station was not sucb a bond or recognizance as he was authorized to take; and he had no power or authority to take any bond except such as was expressly provided for by the ordinance or charter. This recognizance omitted the words “to-await his trial upon the charge against him,” which are expressly required by the ordinance; and added the words, “and shall also appear on any future day to which this cause may be continued and shall not depart thence without leave being first had and obtained from said police justice,” words which the officer had no authority to insert and which words are therefore mere surplusage, and of no binding force or effect. The recognizance being a creature of special statute or ordinance, for a particular purpose, could not be based upon any other condition than such as provided for by statute or ordinance. State ex rel. v. Fraser, 165 Mo. 260; State v. Lewis, 61 Mo. App.'634; State v. Crowley, 60 Me. 107; State v. Bobb, 39 Mo. App. 5501. The surety undertook to enter into such a recognizance only as the law required and was not bound by any conditions which the law did not require nor authorize the officer to insert. (1) The surety then having complied with all the lawful terms of his recognizance, in having the principal in the designated court on the designated day to answer the designated charge, the recognizance was functus officio and the surety was released from all further obligation. State v. Bobb, 39 Mo. App. 543; State v. Lewis,.61 Mo. App. •634; State v. Moore, 57 Mo. App. 662; State v. Mackey, 55 Mo. 51; Allen v. Brewery & Ice Co., 196 Mo. 435. (2) The statute relating to the proceedings before justices of the peace, and by which the procedure before the police justice is prescribed, provides, R S. • 1899', sec. 2759, that upon good cause shown, the justice may postpone the trial to a day certain, in which case he shall require the defendant to enter into a recognizance conditioned that he will appear before the justice at the time and place appointed, then and there to answer the charge against him. The words “and not to depart without leave” were added by an amendment, Laws 1901, p. 141. Prior to the addition of the words “and not to depart without leave” by said amendment, a condition to that effect contained in the recognizance was nugatory. State v. Lewis, 61 Mo. App. 635. And the statute further provided, sec. 2760, that upon the failure or refusal of the defendant to enter into such a recognizance, it was the duty of the justice to commit him; and the form of the recognizance is suggested in Sec. 2762. A failure of the justice to require such a recognizance released the surety upon the preceding recognizance. Allen v. Brewery & Ice Co., 196 Mo. 435. It was clearly the duty, therefore, of the police justice to' have required the defendant principal, at the time of the continuance, to enter into such new recognizance, or commit him on his failure to do so.

      Lambert E. WaWher and A. E. Roudebush for responder t.
    (1) The ordinance thus relied on as prescribing the conditions of the recognizance was neither pleaded nor offered in evidence, nor in any other manner brought to the attention of the trial court. That this court will not now take judicial notice of the ordinance. Keane v. Klausman, 21 Mo. App. 485; St. Louis v. Roche, 128 Mo. 541; State v. Gfustin, 152 Mo. 108; Tarldo v. Loyd, 179 Mo. 600'; Bailey v. Kansas City, 189 Mo. 503; St. Louis v. Liessing, 190 Mo. 490; Canton v. Madden, 120 Mo. App. 404; Spiro v. Transit Co., 109 Mo. App. 5; St. Louis v. Bippen, 201 Mo. 528. (2) The appellants’ contention that a new recognizance should have been taken when the case was continued on September 17th, 1906, and that the failure to require it released the surety on the original bonds, is not well founded, and for these reasons: This position of appellant rests on the theory that (1) the charter and (2) the ordinances, of the city of St. Louis have adopted and incorporated in themselves, by reference, the statutes of Missouri relating to proceedings before justices of the peace and that those statutes (R. S. 1899, see. 2759) require a new recognizance to be taken when the case is continued. In answer to this theory we submit: (a) The charter adopts the statutory procedure only as to appeals. Obviously it has no reference to any procedure before necessity for an appeal arises. It does not undertake to adopt the statutory procedure as to taking of recognizances in the first instance, but leaves that to be regulated by ordinance, (b) The ordinance was not offered in evidence and will not now be'judicially noticed. (3) Even if the provisions of the statutes of the State of Missouri relating to proceedings before justices in misdemeanors have been adopted and incorporated as part of the procedure in police court cases, then all of those statutes have been so adopted and must be so applied, and Sec. 2800, R. S. 1889, is sufficient to cure any informalities alleged to exist in the bond in question. State v. Thompson, 81 Mo. 165; State v. Morgan, 124 Mo. 467; State v. Austin, 141 Mo. 481; State v. Eyermann, 172 Mo. 294; State v. Abel, 170 Mo. 59; State v. Epstein, 186 Mo. 99.
   BROWN, C.

— This is an appeal by Henry Henning, surety in a recognizance for the appearance of defendant Young in the police court of the city of St. Louis to answer a charge of violating a city ordinance, from a judgment of the St. Louis Court of Criminal Correction on scire facias, enforcing a forfeiture of said recognizance.

Although appellant’s abstract of the record states that certain objections were taken by the appellant in the course of this proceeding, and that a bill of exceptions was signed and filed, there is nothing contained in the abstract indicating what the bill of exceptions contained, or that any action or proceeding of the court was preserved or stated in it.

The scire facias was issued out of the Second District Police Court of the city of St. Louis, and is, with the returns thereon, in the following words and figures:

IN THE SECOND DISTRICT POLICE COURT.
State of Missouri, City of St. Louis, ss.
THE STATE OP MISSOURI
fo the Marshal of the City of St. Louis, Greeting:
Whereas, on the 15th day of Sept., A. D. 1906, in the city of St. Louis, Harry Young'as principal and Hy. Henning as security personally appeared before John Lyon of 9th District, an officer of the city of St. Louis duly authorized by ordinance to take bonds for and in behalf of the city of St. Louis in cases of persons arrested for violation of ordinances of said city; and acknowledged themselves to be each indebted to said city in the sum of two hundred dollars, to be levied upon their respective goods, chattels, lands and tenements.
Yet upon condition, that if the, said principal shall personally be and appear before the police justice of the Second District Police Court of the city of St. Louis at the Second District Police Court of said city on the 17th day of Sept., A. D. 1906, at the opening of the said police court on the forenoon of said day, then and there to answer a charge of violating an ordinance of said city, and should not depart thence without leave being first obtained from said police justice, then their r'ecognizance to be null and void; otherwise to remain in full force and effect; and
Whereas, afterwards, on a day subsequent to said 17th day of September, 1906, named in said recognizance, to-wit, on the 25th day of Sept., 1906, to which the hearing of said case had been continued in said court, the said principal not having been discharged from said recognizance, although then and there solemnly demanded by said court to come into court according to the condition of said recognizance, came not, but made default and failed therein, and the said security, although demanded then and there by the said court to bring into court the body of said principal and save his recognizance, came not, but failed therein;
Wherefore, it was considered by said court that the recognizance of said security, as well as of said principal, be forfeited, and
Whereas, The said sum acknowledged as aforesaid from them,' the said conusors, yet remain to be levied;
. Therefore, we command you to make'known to said principal and security, according to lay, that they appear before the said police justice of the city of St. Louis, at’the Second District Police Court of said city, on the 25th day of Oct., 1906, then and there to show cause if any they have, or anything can say, why the city of St. Louis should not have execution against them of the debt aforesaid, in form aforesaid, by them acknowledged to be due according to the force of said recognizance (now remaining in possession of said court), and have you then and there this writ, with.your return thereon how you have executed the same.
Given under my hand this 25th day of Sept., A. D. 1906. By order of the Second District Police Justice.
• W. A. CARTEE,
Clerk of the Second District .Police Court.

And return thereon, as follows:

Return on original:

Executed this writ in the city of St. Louis on this 10th day of Oct., 1906, by delivering a true copy to within named security Hy.; Henning.
GEO. P. WEINBRENNER,
City Marshal.
By J. Prank Tevis, Deputy City Marshal.

Return on alias:

Executed the within writ in the city of St. Louis on this 30th day of Oct., 1906. After due and diligent search by the Marshal the within named Harry Young could not be found in the city of St. Louis.
GEO. P. WEINBRENNER,
City Marshal.
By R. A. James, Deputy City Marshal.

. No other writ appears in the abstract'of the record, although the returns set out above seems to indicate that an alias was issued and returned nihil as to Young.

Judgment was entered in the Second District Police Court November 16, 1906, enforcing a forfeiture of the bond mentioned in the writ, from which appeal was taken by Mr. Henning, the surety, to the St. Louis Court of Criminal Correction.

In the latter court a motion was filed by appellant to quash the writ for matter apparent on its face, which was overruled, and appellant thereupon filed a return which, he designates an answer, denying all the allegations of the writ and asserting in general terms that the police court was without jurisdiction to declare a forfeiture of the bond referred to in the writ.

On June 1st, 1907, a trial de novo was had in the Court of Criminal Correction, resulting in the judgment against Henning, from which this appeal is taken.

I. In this case the issues of law made by the parties in their briefs are materially narrowed by the fact that, although the appellant’s abstract of record states that a bill of exceptions was, during the time allowed by the court for that purpose, duly signed and filed, there is nothing from which its contents can be even surmised.

It has become the settled rule of this court that the abstract of the record should show, in some orderly and reasonable way, that the exceptions and motions are preserved in a bill of exceptions, otherwise we cannot consider them. [State v. Adkins, 221 Mo. 112, 120, and cases cited; Hays v. Foos, 223 Mo. 421; Kolokas v. Railroad, Id., 455, 460.] For this reason we are precluded from the examination of any question not raised on the face of the record proper. Applying the rule to this case,, the question is whether the writ on its face is sufficient to support the judgment.

This eliminates a preliminary question raised by the appellant as to the effect of certain ordinances of the city of St. Louis relating to matters of practice before the police justice. As it does not appear from the abstract of record that any such ordinances were before the court, either by averment in the writ or return, or as evidence, we are not at liberty to assume their existence for the purposes of this case. Whatever of incongruity there may be in a rule which creates a conclusive presumption that the wandering vagrant who sojourns for a day in St. Louis knows more of its local laws than the court which, by its judgment, «affords him rest and refreshment in the city prison, has become unimportant in view of a uniform line of decisions of this court. Nothing is now better settled than that the St. Louis Court of Criminal Correction will not take judicial notice of the ordinances of the city. [St. Louis v. Roche, 128 Mo. 541; St. Louis v. Liessing, 190 Mo. 464, 490; St. Louis v. Bippen, 201 Mo. 528.] The evidence, received in the trial court not being before us we must presume that it corresponded with the writ and was sufficient, if the statements of the writ are sufficient, to support the judgment.

The general power of the’city to impose, collect and enforce fines for the breach of its ordinances; and to imprison for the non-payment of such impositions, necessarily includes the power to provide for and prescribe the form of recognizance to secure the appearance of the defendant to answer the accusation against him, and we must presume that the evidence showed the necessary authority to take the recognizance in the form stated in the writ, so far as such presumption is necessary to sustain the judgment.

. The writ states the condition to be that the principal “personally be and appear before the police justice of the Second District Police Court of the city of St. Louis at the Second District Police Court of said city on the 17th day of Sept., A. D. 1906, at the opening of the said police court on the forenoon of said day, then and there to answer a charge of violating an ordinance of said city, and shall not depart thence without leave being first obtained from said police justice.”

The writ further states, in substance, that on said appearance day the hearing of Young was continued until the 25th day of September, 1906, on which day he failed to appear and the recognizance was forfeited.

It is objected by the appellant that the recognizance could only be forfeited by the failure of Young to appear on the day named in it for the hearing, and that having appeared on that day it had performed its office and lie was discharged. This is the real and only question in the case.

It was said by this court in Stevens v. Kansas City, 146 Mo. 460, 465, that “a proceeding in a police court to punish a violation of a municipal ordinance by a fine or imprisonment is civil in form and quasi-criminal in character. . . . It is governed by the rules of pleading applicable to civil cases, but if it was solely civil no fine or imprisonment could be inflicted. It is therefore a quasi-civil and criminal action.”

The criminal character of such cases lies then in the fact that their object is to punish, and that the proceeding involves the arrest and physical restraint of the person charged. His arrest is an incident to the criminal phase of the case, so that when he is in custody in such a proceeding he is in custody on a criminal charge.

The writ states that Young, the principal, was charged with a violation of an ordinance of the city, and that he and the appellant as his security personally appeared before John Lyon, “an officer of the city of St. Louis duly authorized by ordinance to take bonds for- and in behalf of the city of St. Louis in case of persons arrested for violation of ordinances of said city, ’ ’ and entered into the recognizance. These statements sufficiently charge either that he was actually in custody of the officer and was discharged therefrom by reason of the giving of the recognizance, or that he had waived formal arrest and was therefore in constructive custody from which he was discharged in the same .manner. The presumption, as we' have already stated, is that the evidence supports the judgment upon any theory that may be fairly implied from the aver-, ments of the writ.

In State v. Eyermann, 172 Mo. 294, Kratz was indicted by the grand jury of the city of St. Louis on the first day of February, 1902. On the third day of the same month he appeared in open court and was recognized, with Eyermann as surety to appear before the circuit court from day to day during the then existing term, and on the first day of any future term thereof to which the cause might be continued, to answer the indictment, and not depart the court without leave thereof. During the same (February) term and on the first day of March, 1902, the cause was continued until the April term, 1902, to be begun on April 6th and was docketed for April 7th. On the twentieth day of March, and during the same term, the court made the following order: “This day the said Charles Kratz comes into court, in his own proper person, and thereupon on recommendation of the circuit attorney, representing the State, it is ordered by the court that the bond heretofore entered into and filed in this court, for the sum of five thousand dollars by the said Charles Kratz, be raised to the sum of twenty thousand dollars. Thereupon, the said Charles Kratz enters into and files his recognizance herein in the sum of twenty thousand dollars, with Gottlieb Eyermann, Jr., as surety, to answer said indictment.” The recognizance so given was in the same form as the previous one. Kratz failed to appear at the April term and scire facias was issued to enforce the forfeiture of the recognizance against the security, and the question was squarely presented to this court whether the principal was in custody or under arrest when the last recognizance was taken, as required by the terms of section 2543, Revised Statutes 1899. In holding the recognizance to be valid in this respect the court (at page 303) said: “It can but be held that he waived the matter of arrest, as he unquestionably had the right to do, and defendant should not now be permitted to say he did not do so.”

In summing up the entire case the court stated (p. 305) that if there were any doubt in regard to what had been said in the opinion it must be dispelled when section 2800, Revised Statutes 1899', is taken into consideration. This section is as follows: “No proceeding upon a recognizance shall he defeated, nor shall judgment thereupon he prevented or arrested, on account of any defect of form, omission of recital, condition or undertaking therein, neglect of the justice or clerk to note or record the default of any principal or surety at the time or term when such default shall happen, or of any other irregularity, so that it be made to appear from the whole record or proceeding that the defendant was legally in custody, charged with a criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the sureties undertook that the defendant should appear before a court or magistrate at a term or time specified for trial. ” .

This section well repays a careful reading. It was a new section in,the Revised Statutes of 1879, being section 2077 of that revision. It provides that judgment for forfeiture shall not be prevened on account of any omission of recital or condition, so that it appears from the whole record or proceeding that the defendant was legally in custody, charged with a Criminal offense, that he was discharged therefrom by reason of the giving of the recognizance, and that it can be ascertained from the recognizance that the surety undertook that the defendant should appear before a court or magistrate at a term or time specified for trial. As we have already said, we do not have the record of the original proceeding before us in such a way that we are at liberty to consider it, and must therefore presume that the defendant was legally in custody and that he was discharged by reason of the giving of the recognizance, and the writ states that the surety undertook that he should appear before the police magistrate at a term specified for trial. That this section made such a recognizance an obligation that the defendant would remain subject to the order of the court until his trial should take place or he should otherwise be finally discharged seems to have been the opinion of this court whenever the question has been presented to it, as is shown by the following cases.

In April, 1868, before this section was enacted, one Mackey was indicted in the Cass Circuit Court for unlawfully selling liquor, and entered into recognizance with Thompson as security, to appear at the next (September) term of that court for trial, and not depart the court without leave. At the next term he appeared, and the cause was ■ continued on motion of the circuit attorney at the cost of the State. At the April term, 1870, he failed to appear and a forfeiture was taken' and a writ of scire facias was issued, charging that, although Mackey appeared at the October term, 1868, he departed the court without leave. Judgment enforcing the forfeiture was rendered, which was brought to this court by appeal and reversed (State v. Mackey, 55 Mo. 51), the court by V'ories, J., saying (p. 55): “If the defendants appeared at the October term in the year 1868, as required by the bond, and remained in court the whole term, ready to obey the order of the court until the term was adjourned, and no measures were taken by the court to commit the defendant or otherwise secure his appearance at any subsequent term of the court, upon the adjournment of that term of the court, the bond or recognizance would become discharged and of no further effect and could not be forfeited by the failure of the defendant to appear at some subsequent term of the court.”

This statute seems to have been first noticed by this court in State v. Thompson, 81 Mo. 163, a criminal prosecution for slander, which originated in a justice’s court, and was finally brought here by appeal from a judgment of the circuit court dismissing the appeal of the defendant from the justice’s court on the ground that the statutory, condition “to render himself in execution” was omitted from the appeal bond. In reversing the judgment on the ground, among others, that the words “to abide the judgment of the court and not depart without leave” were equivalent to the statutory words first quoted, Philips, 0., in the opinion referred to the new statute, then section 2077, Revised Statutes 1879, as follows: “It would he inconsistent, if not absurd, to say that, while on the appeal bond given in this case by the defendant, he and his sureties would be held on a scire facias for a forfeited recognizance,the same bond was ineffectual as an appeal bond.”

The same section was again applied here in State v. Morgan, 124 Mo. 467. This was an appeal in a criminal case in which a recognizance was taken in the circuit court September 29', 1890, conditioned that the defendant should “appear in the Supreme Court, at the April term, 1891, thereof, to receive judgment in the appeal, and in this court, if the Supreme Court shall so order, and at such time and place as such court shall direct, and that he will render himself in execution and obey every order and judgment which shall be made in the premises. ’ ’ The recognizance was forfeited December 13,1892, for the failure of the defendant to appear at that term, and scire facias was awarded against him and his securities. The same defense, in substance, was made as is made here — that the defendant was only bound by his undertaking to appear at the April term. This court in affirming the judgment said: “But if there were any doubt in regard to the views herein expressed, there can not be when section 4380', Revised Statutes 1889, is taken into consideration.” It then proceeded to quote the section, which is the same we have already quoted, and proceeded: “This statute was first enacted in 1879', and was, therefore, not in force at the time the case of State v. Mackey, supra, was decided, and was evidently enacted to change the law as therein announced that cognizors might not escape liability upon mere technicalities, which in no way could possibly injuriously affect their rights.”

In State v. Austin, 141 Mo. 481, this court had before it a judgment for the State on scire facias issued upon the forfeiture of a bond conditioned (p. 483) “that said Austin should be and appear before the circuit court of Lincoln county on the first day of the October term, to be begun and held at Troy, Missouri, on the second Monday in October, 1893,-and not depart without leave of the court.” This bond was forfeited December 4th for the failure of the defendant to appear on that day. In affirming the judgment this court (p. 485), after emphasizing the concluding words of the recognizance, “and not depart without leave of the court,” quotes (p. 487) this section of the statute, and says: “All of which amply appears in this record and the statute answers all the points made against the judgment. It is a wise and wholesome piece of legislation and should be enforced in the spirit of its enactment. ’ ’

It is held in all these cases that when the sureties undertake that the defendant shall appear before a court or magistrate at the term specified for trial, their obligation is that he shall remain in court for all the purposes of his case, and that a new undertaking is no more necessary than is a new summons to toll the civil defendant into court at each successive term. It is a most reasonable thing to require, and the words of the section call for such a construction. There is no reason why, when one charged with crime passes bv his own choice from the custody of the law to the beneficent custody of his friends, the new relation ought not to be as broad as the old, or the friends should not, to the extent of their pecuniary undertaking, assume a responsibility as extensive as that of the officer whom they supersede.

On the other hand, the appellant cites Allen v. Cape Brewing and Ice Co., 196 Mo. 435, to sustain his contention that the recognizance in this case was functus officio from the time the hearing of the cause was continued in the police court on September 17, 1906. That case depended upon the following facts:

Allen was arrested December 18, 1899, upon an information charging him with selling liquor to a minor contrary to law, and taken before a justice of the peace, before whom, on December 21st, he entered into a recognizance, with the Brewing Company and another as sureties, for his appearance before the justice on January 22, 1900, to answer the said charge, and not depart without leave of said justice. The cause, by consent of parties, was continued from time to time to the 4th day of October, 1900', when Allen was called for trial and made default, and his recognizance was forfeited. This court, Burgess, P. J., writing the opinion, held that it was then too late to render judgment of forfeiture, as the recognizance had expired; and said (p. 440): “Section 2759, Revised Statutes 1899, provides that for good cause shown, the justice may postpone the trial of the cause to a day certain, in which case he shall require the defendant to enter into a recognizance with sufficient security, conditioned that he will appear before the justice at the time and place appointed then and there to answer the charge alleged against him in the information. Section 2760, Revised Statutes 1899, provides that, if the defendant shall fail or refuse to enter into a recognizance, the justice shall commit him to the common jail of the county, or other prison, to remain until the day fixed for trial. As Allen appeared before the justice on the second day of January,, as required by the recognizance, to answer the charge preferred against him in the information, and remained until the case had been postponed, by agreement, to another day, and no further steps .were taken to secure his appearance before the justice, the recognizance was discharged, and could not be forfeited at the time to which the case was postponed, to-wit, October 4, 1900. [State v. Mackey, 55 Mo. 51.]”

We have quoted so fully from this opinion to develop the fact that the point was decided solely upon the effect of section 2759, Revised Statutes 1899, which has no application to this case. It does, however, strike one as unaccountable that this law should be so framed as to require a new recognizance whenever the hearing of a misdemeanor case before a justice of the peace is continued from one day to another, and we naturally scrutinize the law so characterized, and find its story told in the following sections:

“Sec. 2755. When the defendant shall be brought before the justice of the peace, or shall be held in custody charged by information with any misdemeanor, it shall be the duty of the justice, unless a continuance be granted, forthwith to hear the case as hereinafter provided. . . .
“Sec. 2759. Upon good cause shown, the justice may postpone the trial of the cause to a day certain, in which case he shall require the defendant to enter into a recognizance, with sufficient security, conditioned that he will appear before the justice at the time and place appointed, then and there to answer the-charge alleged against him in the information. . . .
“Sec. 2762. When a continuance is granted the recognizance may be in the following form:
“We, A. B. as principal, and E. F. and G-. H. as securities, acknowledge ourselves to owe and be indebted to the State of Missouri, in the sum of-dollars, to be void upon the condition: That the said A. B. shall personally appear before O. K., a justice of the peace within and for the county of-and State of Missouri, at his office, on the-day of -, 190 — , at-o’clock — M., then and there to answer to an information for-(here state the offense) and not to depart without leave, otherwise to remain in force.”

These sections weré continued bodily from sections 4335, 4339 and 4342, respectively, of the Revised Statutes 1889, and were obviously not intended to impose upon the defendant the duty of hunting his securities and giving a new recognizance every time the State or justice shall see fit to postpone the trial to a future day. Such a construction would be oppressive as well as unnecessary. It was designed to give the defendant a speedy trial, without the trouble of bail, and if that could not be done, to recognize him to appear for trial at a day certain, and not depart the court without leave. It only provides for a single recognizance, and that a continuing one so far as the concluding words make it continuing.

A pleasing example of the friendly way in which Legislature and courts work side by side toward legal perfection is found in the history of the section above quoted from the Revised Statutes 1899'. The form prescribed for the recognizance in section 2762 is in fine print in both revisions. We all remember, how, in the good old fashioned method of teaching- grammar we children were required to graduate through the coarse print to a knowledge of the subtler mysteries of the fine. The Kansas City Court of Appeals, in State v. Lewis, 61 Mo. App. 633, having- graduated from the coarse print of section 4339' of the revision of 1889, and not having progressed as far as the fine print of section 4342, decided that the continuing condition “and not depart without leave” in the recognizance it then had under consideration, was nugatory, because not authorized by section 4339 of Revised Statutes 1889, and let the security out.

The Legislature seemed to notice this decision with dissatisfaction, and in. 1901 added to section 2759, Revised Statutes 1899, the words “and not to depart without leave,” so that thereafter those words should appear in coarse as well as fine print. [Laws 1901, p. 141.] This action evidently expresses the opinion of the Legislature that these words mean something. They were, of course, intended to make a change in the law as declared in State v. Lewis, and they chose apt words to bring about that result. Should a military officer issue an order that members of his command should not depart the camp without leave, no one would construe it to mean that every leave must be an indefinite one so that the soldier would be at liberty to return or not as he pleased, yet this is the precise construction that is attempted to be given to the same words used in the recognizance in this case.

There is a later case from this court on the same general proposition — State v. Charles, 207 Mo. 40. While it only decides that an appearance and pléa of guilty by the defendant has the same affect on his recognizance as a verdict of guilty, in that it is the duty of the court to order him into the custody of the officer so that his sureties are discharged from further responsibility, it quotes from Hawkins’ Pleas of the Crown an expression which condenses much of the learning on this subject as follows: “It must be confessed that if a man’s bail, who are his jailers of his own choosing, do as effectually secure his appearance, and put him as much under the power of. the court as if he had been in the custody of the proper officer, they seem to have answered the end of the law and to have done all that can be reasonably required of them.” There is nothing truer than this. The officer is the hand of the court which holds the defendant both, in and out of its presence, and so long as the bail desires to relieve him of the humiliation and inconvenience of this custody they may undertake to. do so up to the very time his detention becomes a punishment, and having so undertaken, they must perform, in every place, the terms of such undertaking, and for their failure to do so they have named their own penalty. [Ramey v. Commonwealth, 83 Ky. 534; State v. Benzion, 79 la. 467; Champlain v. People, 2 Comstock, 82; People v. Stager, 16 Wend. 431; State v. Randolph, 22 Mo. 474, 479; State v. Austin, supra, 486; State v. Poston, 63 Mo. 521; State v. Millsaps, 69 Mo. 359, 362.]

For the reasons stated the judgment of the St. Louis Court of Criminal Correction is affirmed.

Blair, G., concurs

PER CURLAM.

— The foregoing opinion of

Brown, G., is adopted as the opinion of the court.

All the judges concur.


author: BROWN, C. PER CURIAM.

text:
    CITY OF ST. LOUIS v. HARRY YOUNG and HENRY HENNING; HENRY HENNING, Appellant.
    (No. 2.)
    Division One,
    June 1, 1911.
    Appeal from St. Louis Court of Criminal Correction. ■ — Hon. Wilson A. Taylor, Judge.
    Affirmed.
   BROWN, C.

— The record in this case is substantially the same as in the case of City of St. Louis v.. Harry Young and Henry Henning, reported at page 44 of this Report, with which it was submitted, and, for the reasons stated in that case, the judgment of the Court of Criminal Correction is affirmed.

Blair, C., concurs;

PER CURIAM.

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

All .the judges concur.


text:
    CITY OF ST. LOUIS v. CHARLES SMITH and HENRY HENNING; HENRY HENNING, Appellant.
    Division One,
    June 1, 1911.
    1. RECOGNIZANCE: No Service: Appearance. Although the return shows no service of the scire facias writ on the surety in the appearance bond, yet, if on the same day after judgment was rendered against him in the police court he appealed to the court of criminal correction, and appeared in that court and filed a motion to quash the writ, which being overruled, he filed an answer and went to trial, the judgment thereafter rendered in the latter court is not void, for lack of jurisdiction over his person.
    2. -: Jailer of Defendant’s Choosing. The surety on a recognizance bond is the jailer of the defendant’s own choosing, with whom and for whose benefit, and not for the benefit of the court, he has entered into a joint and several obligation to make his custody effective; and there is no reason why this should impose upon the court any new duty of watchfulness or guardianship, either for defendant or his surety.
    Appeal from St. Louis Court of Criminal Correction. ■ — Hon. Wilson A. Taylor, Judge.
    Affirmed.

      G. Orrich Bishop for appellant.
    The return simply states, “Executed the within writ in the city of St. Louis on this 26th day of October, 1906.” The name of the appellant is not mentioned, nor any statement whatever as to how it was executed. There is nothing to show that this appellant was ever advised in any way that a writ of scire facias had been issued against him before the police justice undertook to render a judgment against him; and the statement in the purported record that the writ was executed “by delivering a true copy” to this appellant is wholly without foundation. For this reason, the judgment of the police justice was beyond his jurisdiction and wholly without support.

      Lambert É. Walther and Á. H. 'Roudebush for respondents.
   BROWN, C.

— The record in this case is the same so far as it affects any question in issue in this appeal, as the record in the case of City of St. Louis v. Harry Young and Henry Henning, reported at page 44 of this Report, with the exception that the only return upon the writ in this case is as follows:

' “Executed the within writ in the city of St. Louis on this 26th day of October, 1906. After due and diligent search by the marshal, the within .named Charles Smith could not be found in the city of St. Louis. ' “Geo. P. Weinbrenner, City Marshal;
“By J. Hillman, Deputy City Marshal.”

The appellant insists that, there being nothing in the records to show that the writ of scire facias was served on him, the police court had, therefore, no jurisdiction of his person and ought not to have rendered judgment against him.

The writ was returnable into the police court where it was tried, resulting in a judgment against the appellant. On the same day he appealed to the Court of Criminal Correction, where he filed a motion to quash the writ, which was overruled. He then filed an answer and went to trial with the same unfortunate result. No notice could do more than to secure bis presence at the trial, and he was there, and had his day in court. As to the failure of the court to issue an alias writ and to secure service or another return nihil as to the principal, we cannot express our opinion in clearer terms than by a quotation from the opinion of this conrt by the late Judge Burgess in the Eyermann case, as follows: “While the record does not show that the court had. jurisdiction over the principal in the bond (Kratz), nor that the proceeding was dismissed as to him, it does show that it had jurisdiction over Eyermann, Jr., and that judgment was rendered against him only, and the bond being joint and several, the judgment was in effect a dismissal as to Kratz. [State v. Abel, 170 Mo. 59.] And as was said in effect in the case last cited, ‘at most the omission to order a formal dismissal as to Kratz was an irregularity which in no way affected the substantial rights of this appellant.’ ”

There is a phase of the obligation, of the surety in these cases that is sometimes overlooked by the courts. He is the jailer of the defendant’s own choosing, with whom and for whose benefit, and not for the benefit of the court, he has entered into a joint and several obligation to make his custody effective to the extent of his pecuniary undertaking. There is no reason why this should impose upon the court any new duty of watchfulness or guardianship, either for himself or his principal. Such a construction would greatly impair one of the most useful purposes of the relation he assumes.

The judgment of the lower court is affirmed.

Blair, G., concurs.

PER CURIAM.

— The foregoing opinion of Brown, C., is adopted as the opinion of the court.-

All the judges concur.


author: BLAIR, C. PER CURIAM.

text:
    WILLIAM STAROSKE, Appellant, v. PULITZER PUBLISHING COMPANY.
    Division One,
    June 1, 1911.
    1. CONTRACT: General Custom:- Necessary Elements: Not Pleaded. A general custom usually, without mention, forms a part of contracts respecting the matter to which such general custom pertains. Certainty, generality, fixedness and uniformity are essential elements of such custom. In this case the petition declares upon a contract between the carrier of a city newspaper route and the publisher of the paper carried thereon. Said petition states that when one contracts for such route in that city it is understood and agreed, according to a well established custom which -has existed for more than fifteen years, that the carrier shall have the exclusive right, for an indefinite period, to sell the paper on his route; that he shall have the right to buy and sell the paper at a certain price; and that he may sell the route, with all the 'above rights and privileges and the good will of such business, with the consent of the publisher. Held,, that such allegations do not disclose the above-mentioned elements essential to a general custom.

      2. -: Local Custom: Not Well Pleaded. A local or particular custom, relied upon as a constituent part of a contract forming the basis of appellant’s cause of action, must be pleaded so explicitly as to show that both parties had knowledge of the custom when the contract was made and that they contracted with reference to it. The petition in this case makes no such allegations; therefore the local or particular custom in question cannot be considered in construing the contract in suit.
    3. -: Agency: Termination: At Will of Either Party. Appellant’s petition alleges that he purchased from respondent newspaper, for a valuable, consideration, a paper carrier’s route and a list of the subscribers living thereon; that for twelve years the respondent recognized him as the owner of said route, and sold to him at one-half the regular subscription price enough papers to supply his subscribers. Such allegations show an agreement creating the relation of principal and agent, and since no time of expiration is fixed, expressly or by implication, by the agreement, it is terminable at the . will of either party.

      4. -: -: -: -: Pleading Valuable Consideration: Does Not Change Effect. The allegation, in a petition that there was a valuable consideration for the contract forming the basis of the action, does not of itself convert what is otherwise shown to be an agreement terminable at the will of either party, into an irrevocable agreement.
    5. AGREEMENT IN RESTRAINT OF TRADE: Two Parties Necessary: Principal and Agent Not Two Parties. An agreement between the publisher of a newspaper and the carriers of that paper, to the effect that said carriers (as a condition of being retained in service) shall not carry the papers of a named competitor, does not violate section 8978, R. S. 1899, declaring illegal every agreement to regulate prices, control or limit trade, etc. The carriers were not in competition with each other, and, being the agents of the publisher, they constituted with him but one party in legal effect.
    Appeal from St. Louis City Circuit Court. — Hon, Moses N; Sale, Judge.
    Affirmed.

      Charles Fensky for appellant.
    (1) Where an agency exists, coupled with an interest, such .agency is irrevocable. Lockart v, Forsythe, 49 Mo. App. 658; State ex rel. v. Walker, 88 Mo. 284; Hunt v. Rausmanier’s Admr., 8 Wheat. 174; Barr v. Schroeder, 32 Cal. 609; Coffin v. Landis, 46 Pa. St. 431; Blackstone v. Buttermore, 53 Pa. St. 266; South v. Kerman, 5 Weekly Law Bui. 145; Powell v. Road Co., 24 Ala. 441. This court in numerous cases held that where an agency is created, and although the agent has no property or interest in the agency, if the agent spent time and money thereon the agency cannot be revoked by the principal without liability therefor. Glover v. Henderson, 120 Mo. 368; McCray v. Pfost, 118 Mo. App. 535; Shell v. Railroad, Í32 Mo. App. 535; White v. Railroad, 202 Mo. 540. (2) Our statutes denounce -any agreement, arrangement or .combination made with a view to lessen, or which tends to lessen, full and free competition in the sale of any article. In order to vitiate a contract or combination, it is not essential that its result should be a complete monopoly; it is sufficient if it really tends to that end, and to deprive the public of the advantages which flow from free competition (United States, v. Knight Co., 156 U. S. 16), and the necessary effect of the agreement is the criterion, no matter what the intent was on the part of those who signed it. United States v. Freight Assn., 166 U. S. 342; Missouri v. Ins. Co., 152 Mo. 1; R. S. 1899, sec. 8978; Door Co. v. Feulle, 215 Mo. 462; Carew v. Rutherford, 106 Mass. 1; Van Horn v. Van Horn, 27 Vr. 218; Railroad' v. Penn. Co., 54 T ed." 730; Eeg. v. Druitt, 10 Cox Cr. Cas. 593; Bishop, New. Cr. Law, sec. 230; Desty, Cr. Law, sec. lib; Morris Run Co. v. Barclay, 68 Pa. St. 173; State ex inf. v. Standard Oil Co., 218 Mo. 359; Heim Brewing Co. v. Bellinder, 97 Mo. App. 64; Fink v. Granite Co., 187 Mo. 244; Walsh v. Plumbers Assn., 97 Mo. App. 280. The petition in this case stated a cause of action on both theories advanced.

      Judson & Green for respondent.
    .(1) The alleged agreement between respondent and its carriers to the effect that the said carriers must not deliver the St. Louis Times while they were acting as carriers of the Post-Dispatch, was not in violation of section 8978 of the Anti-Trust Act of 1899. Whitwell v. Tobacco Co., 125 Fed. 454; Wood Co. v. Hardware Co., 75 S. C. 378; State ex rel. v. Associated’ Press, 159 Mo. 410; Virtue v. Creamery Co., 179 Fed. 115; United States v. Standard Oil Co., 173 Fed. 191; Phillips v. Cement Co., 125 Fed. 593; Weiboldt.v. Standard Fashion Co., 80 111. App. 67;' Houcks v. Wright, 77 Miss. 476; Walsh v. Dwight, 58 N. Y. Supp. 288. (2) The business of news-gathering or of printing and publishing a newspaper is strictly a private business and is not impressed with any public use whatsoever; and the Anti-Trust Statutes are not applicable to such business, or to such a contract as we have here. State ex rel. v. Associated Press, 159 Mo. 410. (3) Appellant cannot change his theory, or shift his ground, in this court, by claiming here for the first time that his petition states a cause of action for breach of contract; but he must stand or fall here on the same theory on which he tried the case in the lower court. Gordon v. Park, 202 Mo. 263; Fuess v. Kansas City, 191 Mo. 692; Smith v. Box Co., 193 Mo. 715; Bridwell v. Cockrell, 122 Mo. App. 196. (4) The Post-Dispatch had the right to stipulate'with its carriers for their sole and undivided loyalty, and to require them to give their undivided time and attention to Its business. Whitwell v. Continental Tobacco Co.. 125 Fed. 454. Such a rule was reasonable and commendable. Matthew, VI. 24.
   BLAIR, C.

— This is an appeal from an order overruling’ a motion to set aside a nonsuit taken when, the court below, at the beginning of the trial, sustained, an objection to the introduction of evidence under the following petition:

“Plaintiff states that defendant is and at all times hereinafter mentioned was a corporation organized under the laws of the State of Missouri, engaged in publishing and selling a daily newspaper in the city of St. Louis, called the St. Louis Post-Dispatch, and caused the said newspaper to be delivered to its subscribers in said city of St. Louis by means of a system of carriers; and for the purpose of distributing and delivering without cost to itself to its subscribers its. said newspapers so published as aforesaid; the defendant has divided the city of St. Louis into certain numerous districts commonly called‘routes,’ and has-sold1 or given such ‘routes’ to various paper carriers, in said city aforesaid, together with the control of the subscription lists of said ‘routes,’ and certain rights and privileges hereinafter described and the good will of the business of acting as such carriers.
“Plaintiff states that when a route is so acquired and is owned by a newspaper carrier, it is understood and agreed between defendant and such carrier, according to a well established custom which has existed for more than fifteen years last past with the defendant and its carriers, that said carriers shall have the ^exclusive right, for an indefinite period of time, to sell and deliver the Post-Dispatch to the subscribers of said paper upon his route, and that he shall buy and defendant will sell to him copies of the Post-Dispatch at one-half the regular subscription price of such newspaper, to-wit: one-half cent for each copy of the afternoon edition and' two and one-half cents for each copy of the Sunday morning edition, and that such carrier shall sell the same at the regular price of subscription of said newspaper, to-wit: one cent for each copy of the daily afternoon edition and five cents for each copy of the Sunday morning edition; and that the defendant will sell to such carrier a sufficient number of copies of its papers, as will supply all the subscribers living upon such route of such carrier, and that the owner of said route may sell and transfer the same, together with all of the rights and privileges above described and the good will of such newspaper carrying business, provided such owner of said route makes such sale and tranfer with the approval, knowledge and consent of the business manager of said newspaper..
“Plaintiff further states that on or about the 15th day of October, 1895, he purchased from defendant for a valuable consideration, one of the aforesaid routes, which was known as Post-Dispatch Route No. 13, together with a list of subscribers of said paper on said route, which at said time consisted of about 170 subscribers.
“Plaintiff states that from the time he purchased said Route No. 13 from defendant in the year 1895, np to on or about the 16th day of April, 1907, plaintiff faithfully performed all of his duties as a carrier of the St. Louis Post-Dispatch, and promptly paid defendant for all copies of the newspaper which were sold by defendant to plaintiff for delivery to the subscribers upon said route, and that by years of devotion to his said business as a newspaper carrier of the St. Louis Post-Dispatch he established a substantial and' profitable business which he carried on successfully for many years, until on or about the 16th day of April, 1907, at which date and for a long time prior thereto, he had increased the number of subscribers of the St. Louis Post-Dispatch from 170 to 530 daily afternoon subscribers, and 410 Sunday morning subscribers, from which said business plaintiff derived a profit and income of about $27.00 per week; and during all this time from the year 1895 until on or about the 16th day of April, 1907, defendant recognized plaintiff as the owner of said Post-Dispatch Route No. 13, and sold to him at one-half the regular subscription price, a sufficient number of copies of its newspapers to supply all of his customers upon said route which were subscribers for said newspaper.
“Plaintiff states that on or about the 15th day of April, 1907, an afternoon English newspaper known as The St. Louis Times was first published and issuéd to the public by the German-A merican Press Association, a corporation, as a competitor in the business of afternoon newspaper publications, and for more than three months prior to said date notice had been given to the public that the publication of such news- • paper to be known as the St. Louis Times would be made on or about said date, and the fact of such intended publication became generally known to the. public in the city of St. Louis, Missouri, and to this defendant.
“And for his canse of action, plaintiff states that defendant, and Charles J. Goedde, Henry J. Goedde* Otto B. Steiner, Fred Nolker, Fred W. C. Rnesche, J. Blnmenthal, Ed J. Ichaff, Ben Tzinsberg, Frank S. Wenger, Henry A. Lippert, Jos. J. Remaklns, who were owners of the Post-Dispatch ‘routes,’ and sold and delivered the said Post-Dispatch newspapers to all subscribers of that paper upon their respective ‘routes,’ together with other Post-Dispatch carriers whose names are unknown to plaintiff and therefore cannot be stated, did, on or about April 15, 1907, in order to limit competition in the trade of publishing and selling daily afternoon newspapers in the city of St. Louis, Missouri, enter into an agreement and understanding that any and all carriers of the said St. Louis Post-Dispatch in the city of St. Louis, Missouri, would be allowed and could sell and deliver to subscribers any and all newspapers published in the city of St. Louis except the aforesaid St. Louis Times, published by the German-American Press Association; and that any and all carriers of the said St. Louis. Post-Dispatch who would not enter into and become a member of or a party to said agreement and understanding could not longer act as carrier of the St. Louis Post-Dispatch, and could no longer buy said paper at one-half the regular subscription price, and sell and deliver its said newspaper to subscribers on his ‘route’ at the full subscription rates.
“Plaintiff states that the aforesaid agreement and understanding between defendant and some of its carriers is in violation of section 8978, Revised Statutes Mo. 1899, and is illegal and void.
“The defendant by its agents, employees and officers, requested this plaintiff' to become a party to such unlawful combination, agreement, understanding and conspiracy, and requested him to sign an agreement, together with such other carriers, but this plaintiff refused to sign said agreement or become a member of or a party to such understanding or agreement.
“Plaintiff states that after plaintiff so -refused to sign said agreement, defendant refused and has continued to refuse to sell to plaintiff copies of the St. Louis Post-Dispatch of either its afternoon or Sunday morning editions, and defendant by its officers, representatives, agents, servants and employees notified subscribers upon Post-Dispatch Route No. 13 that plaintiff was no longer connected with the St. Louis Post-Dispatch, and defendant by its officers and representatives appropriated Post-Dispatch Route No. 13 to its own use, by appointing another carrier to take charge of it and defendant neither offered or- paid plaintiff anything for his ownership of said route. '
“Plaintiff states that by reason of the unlawful and illegal agreement and understanding between defendant and the carriers of the Post-Dispatch, and "plaintiff’s refusal to sign such unlawful and illegal agreement and understanding, and defendant’s acts in refusing to further carry out its contract with plaintiff to sell him copies of the Post-Dispatch at half its subscription rates, with which to supply all subscribers upon Post-Dispatch Route No. 13 at the regular subscription price, plaintiff has been greatly damaged in his business as a carrier of said St. Louis Post-Dispatch newspaper — the acts of defendant having the effect of totally destroying his business and the sale value of his route, and totally depriving him of the income derived from said route by the purchase and sale, under.his,.aforesaid contract with defendant, of .a . sufficient number „óf„copies of the said St. Louis -Post-Dispatch afternoon and Sunday, morning editions to ..supply.-the .subscribers upon route known as. Post-Dispatch-.Route No. 18. ..............
, “ And plaintiff states that the reasonable value,-of ffhe rights and privileges growing out. of,the contract with defendant for route ^ known as . Post-Dispatch Route No. 13 is .five thousand dollars, and the income-which plaintiff would have derived from conducting his said business from his purchase and sale of the said St. Louis Post-Dispatch with which to supply the customers upon said route since the 16th day of April, 1907, was about three hundred and twenty-five dollars.
“Wherefore plaintiff prays judgment for treble damages against the defendant in the sum of fifteen thousand three hundred and twenty-five dollars, and the costs of this suit, including a reasonable attorney’s fee, as provided by the statutes of Missouri.”

The damages alleged to have accrued from the revocation of the contract set up-in the petition constitute the basis of this action, whether it be considered one for simple'breach of contract or as brought for injury resultant upon a violation of the statute against pools, trusts and conspiracies. [Whitwell v. Continental Tobacco Co., 125 Fed. 461.]

I. The contentions of appellant’s counsel in this court involve the assumption that the contract between appellant and respondent must be construed as including those provisions which, it is alleged, it was respondent’s practice to incorporate in its agreements with carriers other than appellant.

It is taken for granted that this practice rose to the dignity of a custom and, as such, entered into and formed a part of the contract between the parties to this action.

It is not to be doubted that if a general custom exists it usually enters into and forms a part of contracts respecting the matter to which such general custom pertains (Southwestern Freight and Cotton Press Co. v. Stanard, 44 Mo. l. c. 82), but the allegations of the petition do not disclose that the mere course of contracting alluded to possessed those elements of certainty, generality, fixedness and uniformity which are essential to constitute such a custom. [Ehrlich v. Ins. Co., 103 Mo. l. c. 238; Martin v. Hall, 26 Mo. l. c. 388; 2 Parsons on Contracts, p. 541.]

Nor do the allegations of the petition meet the requirements of the rule supported by reason and the great weight of authority, that if a particular or local custom is relied upon, it must be pleaded (Sherwood v. Savings Bank, 131 Ia. l. c. 530, et seq.; Oriental L. Co. v. Blades L. Co., 103 Va. l. c. 741; Mobile Fruit & Trading Co. v. Judy, 91 Ill. App. l. c. 91; Con. Coal Co. v. Jones, 120 Ill. App. l. c. 146; Hayden v. Grillo’s Admr., 42 Mo. App. l. c. 5, 6), and pleaded so explicitly, that it will appear not only that such local or particular custom existed but that both parties had knowledge of it at the time the contract was made and, in addition, contracted with reference to it. [Hendricks v. Middlebrooks Co., 118 Ga. l. c. 137; Antomarchi’s Exr. v. Russell, 63 Ala. l. c. 361; Wallace v. Morgan, 23 Ind. l. c. 402, et seq.; Overman v. Bank, 30 N. J. L. l. c. 65.]

This rule is particularly applicable to this case. Here a local custom, or individual practice, it is now contended, entered into and became a part of the contract between appellant and respondent. This is not a case in which a custom is relied upon merely as evidence of some other fact in issue, or to explain an ambiguity, or the meaning of some trade or technical term, but one in which an attempt is made to rely upon a custom or practice as a constituent part of a contract which forms the basis of appellant’s supposed cause of action. [Sherwood v. Bank, 131 Ia. l. c. 532.]

The petition does not allege that respondent knew that appellant was contracting with reference to the alleged practice of respondent in framing its previous contracts with its carriers, nor that appellant contracted with reference to such practice, nor even that appellant knew of such practice or custom of respondent when he entered into his agreement with it. The practice of respondent in contracting with its other carriers previous to the making of the contract in this case cannot, therefore, he considered in' construing the contract between appellant and respondent. [Hendricks v. Middlebrooks Co., 118 Ga. l. c. 137; Sugart v. Mays, 54 Ga. l. c. 557; Barlow v. Lambert, 28 Ala. l. c. 708, et seq.] To hold otherwise would be equivalent to saying that courts can refashion contracts for the parties thereto for the mere purpose of bringing them into accord with other contracts with other persons.

II. Eliminating from consideration that portion of the petition dealt with in the preceding paragraph, the agreement between the parties in this case was one by which respondent secured the personal service and skill of appellant as a carrier of its paper and as its representative with respect to the matter of its circulation in the district in the.city of St. Louis which is designated as “route 13.” The relation created was that of principal and agent. [Willcox v. Ewing, 141 U. S. l. c. 636.]

There was no time fixed, expressly or by implication, at which the agreement was to expire. The general rule is that such an agreement is terminable at the will of either party. [Fox v. Commercial Press Co., 28 Ky. Law Rep. l. c. 46, 47; State ex rel. v. Walker, 88 Mo. l. c. 283, 284.]

The only allegation of the petition which could be urged as bringing this contract within any of the exceptions to the rule is that with reference to the payment of “a valuable consideration” for the “route.” There are authorities which hold that the mere allegation, in a case of this kind, that there was ‘ ‘ a valuable consideration” for the contract, is wholly insufficient, and that not even by verdict is such a defect cured. [Brush v. Raney, 34 Ind. l. c. 417; Leach v. Rhodes. 49 Ind. 292; Taylor v. Leeson, 35 Ind. App. l. c. 622; Fulton v. Varney, 102 N. Y. Supp. l. c. 611.]

If it be conceded that such an objection cannot be heeded when the-question is not raised until the trial has begun (Storseth v. Folsom, 45 Wash. l. c. 375, 378), nevertheless the contract in this case is not ex-, cepted from the operation of the rule.

Whatever the consideration, the petition does not allege that it was paid to secure the addition to the contract of any express stipulation that it should be irrevocable, and no such provision was included in the contract. The case made by the petition is simply that appellant induced respondent for “a valuable consideration” to confer upon him an agency revocable by its nature at the will of either party. The consideration in this case, so far as the petition discloses, introduced no element of estoppel, added nothing to the contract between the parties, but merely induced the execution of an agreement terminable at will.

In a case in which a consideration is paid to induce the execution of a contract which fixes its own duration, or which, from its nature, is terminated by performance of its conditions, or when such consideration is paid to, procure the inclusion of an express covenant against revocation, then the exception applies. But an agency such as this is alleged to have been (Willcox v. Ewing, 141 U. S. l. c. 636) is not rendered immortal by the passing of a consideration for its creation. The parties might have provided that the contract should be irrevocable (Wharton on Agency, sec. 95), but the petition discloses' that they, in legal effect, did the opposite. [Stonega Coal Co. v. Railroad, 106 Va. 223.]

Respondent had both the power and the right (Kilpatrick v. Wiley, 197 Mo. l. c. 167) to pursue the course it did, *and no action lies for the revocation.

The agreement in this case is, in this respect, unlike those in the cases of Newhall v. Journal Printing Co., 105 Minn. 44, and Harlow v. Oregonian Publishing Co., 53 Ore. 272, 45 Ore. 520.

III. Neither did the agreement between respondent'and its other carriers'render the exercise of the power to revoke actionable. It is true that it is in some cases unlawful to agree or conspire to do an act which either party to such agreement might, alone, lawfully do. The attempt to apply that rule here must fail. There is no agreement, no conspiracy, within the meaning of this rule, alleged in the petition. The gist of the allegations in that respect is that respondent imposed upon its carriers as the condition of their being retained in its service, the requirement that they should not act as carriers for a rival newspaper which was on the eve of entering into competition with respondent. That this was not a restriction of competition among the carriers is apparent, since they were in no manner in competition with each other. Nor was any other publisher a party to this transaction. Respondent simply declined to compete with itself. No one was concerned in this agreement, so far as the petition states, except respondent and its agents. In other words an attempt is made to allege an agreement to which there was, in legal effect, but one party. If the anti-trust statute does not prohibit the refusal of a single individual to sell, save to customers of his choice, or to sell at all (Whitwell v. Continental Tobacco Co., 125 Fed. 461), neither, for a stronger reason, does it deprive respondent of the right to withhold the power to represent it in selling its paper from those who refuse to protect its interests by refraining from aiding its competitors.

' Under the rule laid down in the last cited case, respondent possessed the right to refuse to sell its papers to any person who might subscribe for a competing paper. Certainly, also, could it refuse to retain in its service those who made it their business to secure subscribers for its competitors.

From these considerations it follows that the judgment must be affirmed.

Brown, G., concurs.

PER CURIAM.

— The foregoing opinion of Blair, 0., is adopted as the opinion of the court.

All the judges concur.