author: BLAIR, J.

text:
    THE STATE ex rel. CITY OF MONETT, v. B. G. THURMAN, Circuit Judge.
    In Banc,
    July 18, 1916.
    1. LOCAL OPTION: Election Contest: Special Law. The portion of Sec. 7242, R. S. 1909, authorizing the contest of a -local option election is not a special law and is not unconstitutional. The Local Option Law itself is neither special nor local, and the contest provisio- added in 1909, being germane to the subject-matter of the rest of the act, is no more local or special than the act itself.
    2. -: -: General Law Applicable: City as Party. The amendment of 1909 to section 7242, Revised Statute 1909, which requires the city or county to be made a party in a local option election contest proceeding, is supported by constitutional authority, and is not invalid on the theory that the general statute provides that all suits shall be prosecuted by the real party in interest and the city or county has no interest in the contest.
    3. -: -: General Law: Exclusive. Section 9 of article 8 of the Constitution, requiring the General Assembly to regulate, by a general law, the manner of trial and determination of contested elections of public officers, does not réstrict contests to elections of officers. A general law, passed in compliance with said constitutional requirement, provides, as to contested elections of public officers, the sole method, and excludes all other methods; but a constitutional direction with reference to procedure as to a particular and specified matter does not preclude legislative action upon another and different matter; and Sec. 7242, R. S. 1909, which, in addition to adopting the general law, proceeds further and makes some additional provisions for contesting a local option election, does not violate that constitutional provision.

      4. -:-: Contest Before Adoption. The result of a local option election may he contested although the returns on their face show a majority against the adoption of the Local Option Law.
    5. -: -: City as Party. The statute making the city a party to a local option election contest is not void on the theory that the city has no interest in the contest.
    6. -: -: Production of Ballot, Etc.: Prohibition. A circuit judge, before whom a proceeding contesting a local option election is pending, will not be restrained from enforcing an order requiring the city and its officers to produce, to be used in evidence, the ballots, ballot boxes, poll books, returns, records, etc., pertaining to said election, on the ground that the order includes a violation of the constitutional provisiqns guaranteeing the secrecy of the ballot, where the order on its face discloses no such intention, and the judge’s return disclaims any intent of the kind.
    Prohibition.
    Whit denied.

      I. V. McPherson and T. D. Steele for relator.
    (1) The portion of section 7242 under which the election contest is brought and which attempts to provide for the contest of a local option election is a special law and is unconstitutional because a general law providing for the contest of all elections by the people, other than those held for the election of public officers, could have been made to apply. State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Roach, 258 Mo. 545; Hume v. Railroad, 82 Mo. 231; State ex rel. v.'Tolle, 71 Mo. 645; State v. Misicek, 225 Mo. 561; Ewing v. Hoblitzelle, 85 Mo. 540; State ex rel. v. Pond, 93 Mo. 606; Sec. 57, art. 4, Mo. Constitution; Secs. 11655, 9703, R. S. 1909; Secs. 16, 12, 22, 20, art. 9, Constitution; Secs. 9545, 8187, R. S. 1909; Chap. 119, art. 1, R. S. 1909; Secs. 1909, 1910, 8187, 8529, 1251, 1250, 1249, 3368, R. S. 1909; Secs. 11, 12a, art. 10, Constitution; Secs. 9927, 9949, 10879, R. S. 1909; Laws 1915, p. 387; Sec. 9, Schedule, Mo. Constitution. (2) The court has no jurisdiction to try the suit to contest the local option election, for the reason the’ only law on the subject (Sec. 7242, R. S. 1909) is a special law, regulating the practice and jurisdiction in judicial proceedings as conducted in courts and is therefore in direct conflict with the provisions of paragraph 17, section 53, article 4, Constitution of Missouri. Dunne v. Cable Railroad, 131 Mo. 1; State ex rel. v. Miller, 100 Mo. 439; State ex rel. v. Roach, 258 Mo. 545; Secs. 1727, 1729, 1732, 1733, 5924, 5957, 5958, 5959, R. S. 1909; Sec. 4, art. 2, Constitution. (3) The portion of Sec. 7242, R. S. 1909, which attempts to provide that a contest of a local option election may be tried in court, is unconstitutional and void because in direct conflict with the provisions of section 9 of article 8 of the Constitution and for that reason ihe Barton Circuit Court is without jurisdiction to try the action to contest the election. Henderson v. Koenig, 168 Mo. 356; State ex rel. v. Imel, 242 Mo. 301; State ex rel. v. Burkhead, 187 Mo. 14. (4) The court is without jurisdiction to try the suit to contest the election because there is no law in force or effect authorizing the proceedings and because there was no statutory or constitutional provision in force and effect authorizing the proceeding at the time the action was instituted; Sec. 7242, R. S. 1909; State ex rel. v. Pond, 9á Mo. 606; State ex rel. v. Mayor St. Joseph, 37 "Mo. 270; St. Louis v. Alexander, 23 Mo. 483; State v. Winkelmeier, 35 Mo. 103; State ex rel. v. Wilcox, 45 Mo. 458; State v. Scearcy, 46 Mo. App. 427; State v. Scearcy, 111 Mo. 227; State ex rel. v. Wightman, 232 Mo. 392; Nance v. Kirby, 251 Mo. 374. (5) EÍven if the provision of section 7242 is valid and is in force, the court’s order requiring the production and exhibition t>f all the ballots voted in said election is in excess of jurisdiction and an abuse thereof and should be prohibited. Sec. 3, art. 8, Constitution; Seca. 5822, 5899, 5904, 5905, 5919, 5939, 5940, 5941, 5943, R. S. 1909; Gantt v. Brown, 238 Mo. 571.

      D. S. Mayhew for respondent.
   BLAIR, J.

— By this proceeding the exercise of our original jurisdiction in prohibition is invoked. The pertinent allegations of the petition for the writ are that a local option election was duly called and was held in the city of Monett; that the result of the election was a majority for the sale of intoxicating liquors; that thereafter certain citizens of Monett, proceeding under section 7242, Revised Statutes 1909, gave notice of contest, in which notice it was charged, among other things, that the poll books, returns, canvass ^nd recorded result of the election were false by reason of mistakes and frauds in the election and the voting and in the ascertainment • of the result; that the majority of the lawful votes were cast'against the sale of intoxicating liquors and that the result so should have been declared, and that the court now so should declare the result upon a fair count. Then followed a prayer that the poll books, returns, ballots and results be purged of errors, frauds and mistakes. The notice then stated that “contestants further specify grounds for the contest of the said election . . . as follows.” Thereupon it was charged that eighty-eight named persons, alleged to be disqualified for various reasons, cast ballots which were counted for the sale of intoxicating liquors.

A counter notice was filed which attacked, on various grounds, the constitutionality of the election contest provision in section 7242, Revised Statutes 1909, and charged that the poll books, ■ returns, canvass and declared result were false and incorrect by reason of mistakes and frauds of disqualified persons who cast ballots which were counted aainst the sale of intoxicating liquors, and prayed that the court purge the poll books, canvass, ballots and declared result, of such frauds and mistakes. The counter notice then named twenty-one persons and alleged they were disqualified but cast ballots which were counted against the sal'e of intoxicating liquors. The counter notice also contained charges of irregularities of various kinds during the election.

After the filing of the notice and counter notice, the venue was changed from Barry to Barton County. Respondent is the judge of the circuit court of Barton County. In the course of the proceedings, the circuit court of Barton County entered its order as follows: “Now, on this day, comes said parties by their respective attorneys, and upon hearing plaintiffs’ application for orders concerning the preservation and production of evidence, it appears to the court, viz: ”

Then follows a paragraph naming the city officers who are in charge of the “ballot boxes, ballots, poll books and certificates used and made at and concerning and returned from the ‘local option election’ mentioned.” Another paragraph names the city clerk and recites that he has charge, for the city, as agent and custodian, of the boxes, books, certificates and returns and the journal of the proceedings of the mayor and council purporting to show the canvass of the returns and the ascertainment and declaration of the result of the election, and proceeds: “That for the proper and fair trial of the issues presented by the pleadings in this case, each and all of the above mentioned boxes, ballot boxes, certificates, journals and records are material and necessary items of evidence for the establishment of the truth of the issues and opposing contentions presented for trial by the court.” Another paragraph names the judges of election who are in charge of the duplicate poll' books, and the final paragraph is as follows:

“Now, therefore, the court does now order and require of the defendant city and its mayor and councilmen and its clerk and of the said election officers, the production by them respectively of the said ballots and ballot boxes, poll books, certificates, returns, records, journals, 'documents and things so in their possession or control at the trial of this cause for use therein as evidence, and that they, each and all, be, and they are ordered and required in the meantime, to safely and securely bold, retain, preserve and maintain the same intact and free from injury in any way, and that these orders be and continue effective in all respects untill further ordered by this court, and that mandates accordingly issue to them, and that they each and all.be summoned by subpoena duces tecum as witnesses, and respectively required to produce the said instruments of evidence at such times and places as shall be fixed or designated by the further docketing of the cause or under the order of this court or of its judge, for the taking of evidence or for the trial of the issues in this cause, and that such subpoenas issue by the clerk of this court on request of plaintiffs.”

The petition alleges that unless respondent is prohibited he will enforce the order set out, and then sets forth the various legal objections to which the order is thought to be obnoxious, and prays that respondent be prohibited from proceeding with it.

The return disclaims any intent on respondent’s part to violate any of the numerous constitutional provisions invoked by relator in its petition, and then advances argument in support of the validity of the order. This last' is in response to the numerous constitutional questions tendered by the petition.

Upon the coming in of the return, relator moved for judgment on the pleadings. Further references to the pleadings will be made in the opinion as the necessity may arise.

I. It is contended the portion of section 7242, Eevised Statutes 1909, purporting to authorize the contest of a local option 'eleo tion, is a special law and, therefore, unconstitutional. The argument is that a general law providing for the contest of elections, under the initiative and referendum, elections involving city charters, tax levies, bond issues, acquisition of public utilities, extension of city limits, approval of franchises, to provide public buildings, organization of school and road districts, adoption of the stock laws and the like could have been made to apply, and that there is no distinction between elections of these sorts and local option elections of a character justifying the treatment of the latter as a separate class for the legislative purpose evinced by. the contest amendment to the section mentioned.

To the Local Option Law itself objection was strenuously made that it was special and local and, therefore, void by force of the constitutional provision relator now invokes. This court held that objection untenable (Ex parte Swann, 96 Mo. 44; State ex rel. Maggard v. Pond, 93 Mo. 606) and that conclusion carries with it another which is that the contest provision added in 1909, being germane to the subject-matter of the act, is no more local or special than the rest of the act. Further, the grounds justifying the treatment of local option elections as a distinct class for legislative action are the .same as those justifying the submission of the act to an election in the first place. The general rule (State ex rel. v. Roach, 258 Mo. l. c. 564) requiring classification for legislative action to be based upon some distinctive feature germane to the subject-matter of the legislation sought to be applied exclusively to such class, is satisfied in this case.

II. It is next insisted the amendment of 1909 to section 7242, Revised Statutes 1909, is violative of the constitutional inhibition (Sec. 53, art. 4, Constitution) . upon the passage of local or special laws regulating practice in the courts. The basis of this contention is that the general law provides that all suits shall be prosecuted by the real party in interest and, relator asserts, the city, made defendant by the statute (Sec. 7242, R. S. 1909) is without interest in the matter. Thus, relator concludes this particular proceeding is made an exception to the general law and the amendment is therefore void. [Art. 4, sec. 53, par. 33, Constitution.] Whatever of substance there is in this argument is answered by the fact that the amendment to section 7242 incorporates, by reference, the general contest provision as to practice in contest proceedings, for the enactment of which provision there is direct constitutional authority. [Sec. 9, art. 8, Constitution of Missouri.] We see no reason for doubting the existence of legislative authority to provide that the city (or county) shall be named as defendant in local option contest proceedings and proceeded against as the representative of all persons interested.. [State ex rel. v. Carter, 257 Mo. 52.]

III. Another contention is that the contest provisions of section 7242 are unconstitutional because of conflict with section 9, article 8, Constitution of Missouri, reading as follows: “The trial and determination of contested elections of all public officers, whether state, judicial, municipal or local, except governor and lieutenant governor, shall be by the courts of law or by one or more of the judges thereof. The General Assembly shall, by general law, designate the court or judge by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto; but no such law, assigning jurisdiction or regulating its exercise, shall apply to any contest arising out of any election held before said law shall take effect.”

The General Assembly long ago passed the general law intended by this section, and section 7242 adopts its provisions as to jurisdiction and procedure in local option contests. The section of the Constitution set out does not restrict contests to elections of officers. As to such contests it provides the sole method and excludes other methods (Henderson v. Koenig, 168 Mo. l. c. 369 et seq.), but we find no authority for the conclusion that a constitutional direction with reference to procedure as to a particular and specified matter precludes all legislative action upon another and different matter.

IY. It is urged that the Local Option Law could not take effect until adopted; that the con-provision in section 7242 is a part of that law; that it, therefore, could not take effect until the law was adopted; that election contests are unknown to the common law; that the law has not been adopted in Monett; hence, it is contended, it follows there is no law in force authorizing a contest of- the Monett election.

This argument proves too much. Strictly applied it would prevent the holding of local option elections. The provision for the election is as much a part of the act as is the amendment to section 7242. So far as concerns the contest proceedings, they are in pari materia with the provisions concerning the procedure prior to the calling of the election and the holding of the election, and simply constitute a part of the machinery provided for determining the result of the election'.

Y. It is insisted the city has no real interest in a local option election contest and that the statute making it a party thereto is void since, it is said, it requires the city to expend public funds, for a private purpose. The payment,of costs, if exacted, is the only expenditure which could be said to be devolved upon the city by the act. This record does not present the question whether the city could be compelled to pay costs. Whether it could be so compelled can be determined when the question is presented.

VI. So far as concerns the argument that the enforcement of the order above set out necessarily includes the violation of the constitutional provisions guaranteeing the secrécy of the ballot, we are of the opinion the order does not require such construction. The return disclaims any intent of that kind. We shall pot assume that respondent will disregard the law upon this subject, but, on the contrary, shall assume that he will be guided by our decisions (Gantt v. Brown, 238 Mo. 560) in the enforcement of the order. The issues made seem to call for a general recount of all the ballots and a more particular examination of over one hundred against which specific objection is lodged. The duty and power of the trial court in such circumstances is well defined and the learned trial judge was right in preserving the evidence necessary to the performance of that duty and the exercise of that power. ' The preliminary rule is discharged and the petition dismissed.

All concur, except Woodson, C. J., absent, and Bond, J., not sitting.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    NATIONAL BANK OF COMMERCE OF KANSAS CITY v. FLANAGAN MILLS AND ELEVATOR COMPANY and UNITED STATES FIDELITY & GUARANTY COMPANY; UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant.
    In Banc,
    July 18, 1916.
    1. GUARANTY BOND: Receipts for Grain: Ambiguous Meaning: Extrinsic Evidence. If the language of a bond is ambiguous and doubtful in its meaning, extraneous evidence may be introduced and considered to determine its meaning. And the language of a bond given to secure the faithful performance of “receipts and other instruments' issued by “the Flanagan Mills & Elevator Company, engaged in the management and operation of elevators and warehouses for the storage of grain” and proposing “to issue warehouse receipts and other instruments evidencing that it is holding grain and other commodities, deliverable upon the request or order of another person or his assignee” and reciting that “it is contemplated by the parties hereto that warehouse receipts, to be issued by the Flanagan Mills & Elevator Company, may be hypothecated with the National Bank of Commerce as collateral security,” when read in connection with a note given by said company to said bank reciting that to secure its payment “the following warehouse receipt” is hereto attached “as collateral security,” and in connection with another instrument captioned a “warehouse receipt” and reciting that there has been received in said “warehouse and elevators” a certain number of “bushels of grain and its product, subject only to the order hereon of the National.Bank of Commerce,” is ambiguous and doubtful, and extrinsic evidence may be considered for the purpose of determining whether the milling company was a warehouseman, and whether the parties understood the written instruments denominated “warehouse receipts” to be in fact real and true warehouse receipts or “other instruments” mentioned in the bond.
    2. WAREHOUSE RECEIPTS: Bailment. If the “warehouse receipts and other instruments” mentioned in the bond as containing the obligation to be performed by the maker, were not in fact warehouse receipts, the relation of bailor and bailee did not exist, and the bondsman is not relieved from liability by a destruction, of the commodity mentioned in the instruments, by fire which was not the result of its fault or neglect.
    3. WAREHOUSEMAN: Milling Company: Receipts. A milling company which bought and stored in its own mills grain for its own use, buying large stocks at advantageous times with money borrowed from a bank for the purpose, and grinding and using it in its usual milling business, and issuing receipts against it as collateral security for the money borrowed, was not a warehouseman and such receipts were not warehouse receipts.
    4. -: Obligation to Deliver Grain upon Demand: Pledge: Liability of Guarantor. The milling company issued a “warehouse receipt” which recited that it had received "in Warehouse and Elevators A. B. at Rich Hill, Mo., five thousand bushels of grain and its product, subject only to the order hereon” of a certain named bank, and used the receipt as collateral security for money borrowed from the bank, and a guaranty company entered into r bond obligating itself that the milling company would “faithfully redeem all such receipts and other instruments issued by it” and fully comply with every “obligation incident thereto or arising therefrom, and at all times deliver the grain demandable by any warehouse receipt or other instrument issued” by the milling company “in connection with the business of conducting said elevator.” The milling company used the money so borrowed in buying grain, which it stored in its elevator and, in the usual way of conducting its milling business, ground into products which it stored in its warehouse, all of which were destroyed by accidental fire. The grain never was in possession of the bank. Eeld, that the transaction was not a sale, nor a mortgage; nor was it a pledge of the grain or its product, because there was no delivery either in fact or otherwise; but when the note, receipt and bond are read together, together with the extrinsic evidence showing that the milling company was engaged in the usual milling business, the primary purpose intended is seen to have been collateral security, and .the agreement to have been an obligation to deliver the commodity mentioned in the “receipt” upon default in the payment of the note after legal demand, and the guaranty company is liable for the amount of the note.
    5. -: -: Presumption in Favor of Validity of Instruments. The law presumes that parties solemnly entering into written obligations intend to make instruments that will legally effectuate their intentions; and an instrument which characterizes itself a “warehouse receipt” and reciting that its maker, a milling company, has .eceived in its elevators a certain number of bushels of grain and its product subject to the order of a named bank and placed with said bank as collateral "security for money borre rfed, will not be held to be a warehouse receipt, or a pledge of the commodity, when such holding would make it invalid for any purpose, but will be held to be what the parties intended it should be, namely, an agreement to deliver the grain' and its product to the bank upon default in the note and legal demand of payment.
    6. -: Storing Own Commodity: Form of Receipt. A milling company, which handles and stores grain to be used only in the ordinary course of its milling business, is not a warehouseman, either at common law or under the statute, because it is not engaged in the business of receiving and storing goods, wares and merchandise for others; an." that being so, the mere form of a receipt concerning such grain issued by it is not sufficient to make it a warehouse receipt.
    7. -: Receipt: Collateral Security. A receipt purporting to be a warehouse receipt, issued by a debtor who is not a warehouseman, on property in his possession and owned by him, for the sole purpose of securing a creditor, is not in any sense a warehouse receipt.
    8. -: -: -: “For Money Loaned:” Statute:'Ejusdem Generis. Sec. 11952, R. S. 1909, declaring that “no'varehouseman, wharfinger, or other person, shall issue any receipt or other voucher upon any goods......grain, flour, or other produce......for any money loaned,” etc., does not refer to • a mere merchant or manufacturer, and if the proof fails to show that the person issuing the receipt was not a warehouseman, engaged in a warehousing business, it cannot be held to be a warehouse receipt, for the words “or other person” mean warehouseman, wharfinger or other person engaged in a similar business.
    9. GUARANTY COMPANY: Guaranty of Contracts: Charter Power. The charter of a corporation investing it with power to guarantee the punctual performance and collection of contracts authorized the company to guarantee the agreement of a milling company to turn over the amount of grain and grain products, mentioned in a collateral instrument issued by it and placed with a bank as collateral security for money borrowed, upon demand, after default upon the note.
    Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.
    Affirmed,

      Yates & Mastin and Perry S. Rader for appellant.
    (1) By the terms of the so-called warehouse receipts the grain mentioned therein was held by the Flanagan Company subject to the order of the National Bank of Commerce upon “surrender- of this receipt and payment of the charges.” There was therefore a pledge of the grain mentioned in each receipt to the bank and the receipts merely evidenced the symbolical delivery of the grain owned by the Flanagan Company to the bank. 31 Cyc. 806; 30 Ency. Law (2 Ed.), p. 69, sec. 4; Conrad v. Fisher, 37 Mo. App. 366; Bank v. Ross, 9 Mo. App. 411; Bank v. Cotton Compress Co., 11 Mo. App. 341. “A pledge is defined to be a bailment of personal property as security for some debt or engagement.” Evans v. Darlington, 5 Blackf. (Ind.) 322; Story on Bailments, old sec. 197, new see. 286; Stearns v. March, 4 Denio (N. Y.), 227; Brewster v. Harrity, 37 Cal. 25. A pledge is a bailment. 3 Ency. Law, p. 742, sec. 4. A collateral pledge is a bailment of personal property. Moffat v. Williams, 36 Pac. (Colo.) 915. To make it valid, delivery, of course must accompany' a pledge, but this may be either actual or constructive. Jacksonville v. Flowers, 42 S. E. (G-a.) 475. In such a'bailment (that is, a bailment of personal property by way of pledge), being for the benefit on both parties, a bailee is required to exercise only ordinary diligence in the care of the property. 3 Am. & Eng. Ency. Law, p. 746. The same rule applies to our situation. The obligation created by the contract, i. e., the warehouse receipts and the bonds in evidence, being for the delivery of the grain upon the order of the bank, its loss by fire is not within the terms of the contract because it is not so expressly stipulated. Mc-Evars v. Steamboat Sangamon, 22 Mo. 190; Link v. Hathaway, 143 Mo. App. 514; 3 Am. & Eng. Ency. Law (2 Ed.), p. 751. (2) If the grain in question was symbolically delivered by the elevator company to the bank under these warehouse receipts the same became a bailment for the mutual benefit of both parties to the transaction, the grain secured to the bank the money advanced by it to the elevator company which was a benefit to the bank and the elevator company on the other hand obtained the loan in evidence, which was to its advantage. The petition is for damages for the failure of the elevator company to deliver the grain upon demand. The relation of the elevator company to the grain is fixed by the terms of the warehouse receipts in evidence and under the authorities cited the transaction is one of bailment only. The custodian of the property the subject of the bailment is liable for failure to deliver the same on demand only in case of his negligence in caring for same. Grashweiler v. Railroad, 83 Mo. 112; Holtzclaw v. Duff, 27 Mo. 392; Story on Bailments (9 Ed.), sec. 444; Angelí on Carriers, sec. 415; 31 Cyc. 827; Preston v. Prather, 137 U. S. 604; Milling Co. v. Transit Co., 122 Mo. 247; 30 ■ Ency. Law, 48; 31 Cyc. 827. (3) The contract sued on made by Flanagan Mills & Elevator Company as principal, and appellant as surety, after reciting the, fact that the elevator company proposes to issue warehouse receipts “evidencing that it is holding grain” deliverable upon the request or order of another person refers to such receipts in the following significant language which we think decisive- of the relation sustained by the elevator company to the grain involved in this suit: “Which receipts and instruments are intended to be delivered either in case of sale or pledge or as evidence of a bailment.” The property therefore could have been and was held only as a pledge and as a bailment and the laws 'affecting such a situation necessarily fixes the appellant’s status. (4) The appellant company was not sued in this action nor could • it have been because of the failure of the elevator company to pay its indebtedness to the bank, bnt to tbe contrary as stated in tbe petition because of tbe failure of tbe elevator company to deliver to tbe bank on demand tbe grain mentioned in tbe warehouse receipts since tbe warehouseman could not be held on tbe warehouse receipts for failure to deliver without showing that tbe warehouseman bad been guilty of negligence in caring for tbe grain. Tbe only duty imposed upon tbe elevator company by tbe warehouse receipts was tbe delivery of. tbe grain which failure to deliver was excused by tbe loss of tbe property by fire. Frost on Guaranty Insurance (2 Ed.), p. 42. To bold that tbe Guaranty Company assumed any greater responsibility than that for tbe fidelity of tbe warehouseman in caring for tbe grain and that its loss or destruction by fire was within tbe contemplation of tbe contract is to convert tbe contract into a policy of .fire insurance and tbe making of such a contract as shown by the charter of the company in evidence is not within tbe powers of tbe company. Morgan v. Railroad, 40 S. W. (Tex.) 985.

      Robinson & Goodrich for respondent.
    (1) Properly construed, tbe written instruments executed and delivered by tbe mill company to tbe bank, as collateral to secure tbe payment of loans made by tbe bank to tbe mill company, were simply agreements on tbe part of tbe mill company to deliver to the bank, on demand, tbe quantities of grain therein specified, (a) Tbe duty of tbe trial court was to ascertain what was tbe intention of tbe parties, and to give effect of such intention. That is tbe fundamental rule in tbe interpretation of all contracts. Koebring v. Muemminghoff, 61 Mo. 403; Ellis v. Harrison, 104 Mo. 270; Griffin v. McIntosh, 176 Mo. 392; Donovan v. Boeck, 217 Mo. 87; Buxton v. Kroeger, 219 Mo. 224; Arnett v. Williams, 226 Mo. 109; St. Louis v. Railway Co., 228 Mo. 712; Mathews V. Modern Wroodmen, 236 Mo. 326; Moran Mfg. Co. v. Caldwell, 240 Mo. 258. (b).. In ascertaining the intention of the parties, the bond sued on, the notes and the receipts should all be construed together, they all relating to, and being parts of the same transaction. Insurance Co. v. St. Mary’s Seminary, 52 Mo. 480; McGregor v. Con. Co., 188 Mo. 611; Nichols v. Kern, 32 Mo. App. 1; Reucking v. McMahon, 81 Mo. App. 422; Ramlose v. Dollman, 100 Mo. App. 347. (c) And said instruments, the bond, notes and receipts, must be read in the light of the facts and circumstances surrounding the parties at the time of the transaction. Gathwright v. Callaway, 10 Mo. 663; Price v. Evans, 26 Mo. 30; Crawford v. Elliott, 78 Mo. 497; Nordyke v. Keahler, 155 Mo. 643 ; Bono-van v. Broeck, 217 Mo. 70; Moran Mfg. Co. v.Caldwell, 240 Mo. 358; Thompson v. Lindsay, 242 Mo. 53; Bobbing v. Edmonds, 18 Mo. App. 307; Kellerman v. Wrecking Co., 137 Mo. App. 392; St. Louis v. Railway Co., 228 Mo. 712; Kreitz v. Eglehoff, 231 Mo. 694; Kenyon Co. v. Cutlery Co., 143 Mo. App. 518; Weeks Co. v. Zinc Co., 153 Mo. App. 387; Bank v. Chick, 170 Mo. App. 347. (d) If a contract admits of more than one construction, one of which will render it inefficacious or nullify it, that construction should be adopted which will carry it into effect. Leiweke v. Jordan, 59 Mo. App. 624; Buck v. Harris, 125 Mo. App. 368; Kelerher v. Henderson, 203 Mo. 514; Peckham v. Haddock, 36 111. 38. (e) The law is well settled that where a contract is fairly and reasonably open to two constructions, one making it legal and the other illegal, the former must be adopted. Ferry Co. v. Railroad, 128 Mo. 224; Water Co. v. Lamar, 128 Mo. 245; Jones v. Williams, 139 Mo. 85; Boonville v. Stephens, 238 Mo. 354; Hobbs v. McLean, 117 U. S. 567; Gurnsey v. Cook, 120 Mass. 501; Lawson on Contracts, sec. 389. (f) All of the foregoing rules of interpretation apply to a contract of guaranty, as well as to any other written instrument. Kansas City v. Yeomans, 213 Mo. 165; Bohne v. Mnrphy, 46 Mo. 59; Allen v.' Bank, 4 Mo. App. 71; London Bank v. Parrott, 125 Cal. 481; Bank v. Gay, 57 Conn. 224; Iron Co: v. Water Wks. Co., 83 Iowa, 386; Cheever v. Schall, 87 Hun, 82; Morrow v. Brady, 12 R. I. 130; 20 Cyc. 1423. (g) Moreover, if a surety bond is fairly susceptible of two constructions, one favorable to the beneficiary and the other to the surety company, the former, if consistent with the purpose for which the bond was given, must be adopted. Hurley v. Fidelity & Deposit Co., 95 Mo. App. 93; Long v. Fidelity Co., 130 Mo. App. 428; Crayon Co. v. McNamara, 136 Mo. App. 463; Shine v. Bank, 70 Mo. 524; Surety Co. v. Pauley, 170 U. S. 133. Measured by these rules, the instruments executed by the mill company, and which are to be read into, and as a part of, the bond sued on in this case, must be construed as agreements on the part of the mill company to deliver to the bank the quantities of grain therein mentioned. (2) The receipts (instruments issued by the mill company and deposited with the bank as collateral security) were not warehouse receipts, (a) The mill company which issued these instruments was not engaged in the business of storing goods for others for compensation, and therefore not a warehouseman. Bank v. Frank, 12 Mo. App. 465; Conrad v. Fisher, 37 Mo. App. 368; Bank v. Trust Co., 135 Mo. App. 375; Sinsheimer v. Whitely, 111 Calif. 378; Hale v. Dock Co., 29 Wis. 488; Shepherdson v. Cary, 29 Wis. 42; Bucher v. Commonwealth, 103 Pa. St. 534; Bank v. Whitehead, 149 Ind. 560; Geifus v. Corrigan, 95 Wis. 561; Black’s Law Dictionary (2 Ed.), p. 1218; Bouvier’s Law Dictionary (New Ed.), p. 1211; Edwards on Bailments, sec. 332; 28 Am. & Eng. Ency. Law, 636; 40 Cyc.’460; 8 Words & Phrases, p. 7392. And the fact that the receipts were executed by warehouseman must affirmatively appear in the evidence. The fact that the mill company issued the receipts in question did not make it a warehouseman. Shepherdson v. Cary, 29 Wi's. 34; Bank v. Whitehead, 149 Ind. 560. (b) A miller cannot issue a warehouse receipt for his own property. See authorities cited above. Bank v. Kent Mfg. Co., 186 Pa. St. 556; Tru^t Co. v. Dandridge, 37 S. W. 288; Trust Co. v. Trumbull, 137 111. 164; Thorne v. Bank, 37 Ohio St. 254; Steanbli v. Bank, 11 Wash. 426. (3) Said instruments issued by the mill company and deposited with the bank as collateral security, were not chattel mortgages because they did not convey the title to the grain therein specified. Jones on Chattel Mortgages (5 Ed.), secs. 1, 4 and 9; Parshall v. Eggert, 54 N. Y. 23; Robinson v. Campbell, 8 Mo. 365; Dean v. Davis, 12 Mo. 112; State ex rel. v. Adams, 76 Mo. 605. They were not chattel mortgages because they did not describe any particular grain. -Williams v. Wylie, 69 Mo. App. 368; Holmes v. Com. Co., 81 Mo. App. 100. And because they contained no description of any debt to be secured. 1 Jones on Mortgages, sec. 70; Pettibone v. Griswold, 4 Conn. 158; New v. Sailors, 114 Ind. 407; Conrad v. Fisher, 37 Mo. App. 366. Nor did said instruments constitute pledges of the property therein mentioned, because there was no delivery of said property. Jones on Pledges (2 Ed.), secs. 1 and 23; 2 Kent’s Com., 577; Corbett v. Underwood, 83 111. 324; ■ Etehepare v. Agueirre, 91 Cal. 288; Casey v. Cavorac, 96 U. S. 467; Bank v. Frank, 12 Mo. App. 460. Nor did said instruments operate as a bailment of the property therein mentioned. To constitute a bailment, there must be delivery of property by one party to another. A miller cannot constitute himself the bailee of his own property. 1 Bouvier’s Law Dictionary; Schouler’s Bailments (2 Ed.), sec. 2; Jones on Bailments, secs. 1 and 117; 2 Kent Com., 558. (4) As said instruments issued by the mill company cannot be construed as mortgages, pledges or bailments, but can be construed as simple agreements on the part of the mill company to deliver the grain therein specified to the hank, and ás agreements of that kind may be hypothecated as collateral security, and as the bond sued on recites that they were to be hypothecated with the bank as collateral security, they must necessarily be construed to be mere agreements for the delivery by the mill company to the bank of the quantities of grain therein mentioned. Collateral security is property or contracts transferred to secure the performance of another obligation. 6 Am. & Eng. Ency. Law, p. 205. These instruments, executed by the mill company, could be hypothecated with the bank as collateral to secure the payment of the notes of the mill company to the bank. 7 Cyc. 278. (5) The receipts executed by the mill company, being simply agreements on the part of the mill company to deliver to the bank certain quantities of grain, and not providing against accidents by inevitable necessity, such as fire, the defendant was bound to make them good, notwithstanding all of the grain and grain products which the mill company had, were destroyed by fire. Davis v. Smith, 15 Mo. 469; Gibson v.<Perry, '29 Mo. 246; Cochran v. Railroad, 131 Mo. 610; McQuiddy v. Brannock, 74 Mo. App. 542; Whittemore v. Sills, 76 Mo. App. 251; Shelby v. Railroad, 77 Mo. App. 207; Beatty v. Coal Co., 56 Mo. App. 230; Shouse v. Neiswanger, 18 Mo. App. 250; Fulkerson v. Eads, 19 Mo. App. 623.
    Appellant’s Brief in Reply:
    (1) To reach the conclusion that the agreement was an “absolute and unconditional agreement to deliver to the bank the grain and its product called for by the receipts,” many vital words in the bond must be disregarded, and those words plaintiff’s counsel proceed to “put aside.” They “put aside” the word “warehouse” at the beginning of the first preamble of the bond, namely, “whereas, the Flanagan Mills & Elevator Company is engaged in the management and operation of elevators and warehouses and cribs attached thereto, for the storage of grain.” They put aside the words “for the storage of grain” in said clause. They put aside the words “warehouse receipts ’ ’ used in the next clause declaring that the Mill Company “proposes to issue warehouse receipts and other instruments evidencing that it is holding grain and other commodities, deliverable upon the request or order of another person or his assignee;” and say that the words “other instruments” are the ' important words, and the words in mind when the bond was made. They put aside the words “pledge” and “sale” and “or as evidence of a bailment” in the last clause of that whereas, declaring that said “receipts and instruments are intended to be delivered either in case of sale or pledge, or as evidence of a bailment.” That clause clearly means that in case of a sale or a pledge of the grain, the Mill Company should be regarded as a bailee, and was to be bound only as a bailee is bound. The whole whereas contemplated that the grain should remain in the possession of the Mill Company, and in case of “sale” of the grain, or in case of a “pledge” of the grain, the receipts should be considered ‘ ‘ as evidence of a bailment.” But respondent says the parties did not mean that, they meant something else, there could have been no “pledge,” and therefore the word “pledge” and the words “as in case of a bailment” must be ‘ ‘ put aside as mere surplusage. ’ ’ They put aside the words “warehouse receipts” and the real meaning of the word “hypothecated” in the next “whereas,” declaring that, “Whereas, It is contemplated by the parties hereto that warehouse receipts, to be issued by the Flanagan Mills & Elevator Company may be hypothecated with said National Bank of Commerce as collateral security;” and they say it was not “warehouse'receipts” that were hypothecated, but “other instruments” which were “absolute and unconditional agreements to deliver a certain number of bushels of grain.” And they say that, in spite of the fact that the word “hypothecate’’ means “to pledge a thing without delivering possession of it to the pledgee;” and in-spite of the fact that the notes, for which these receipts were delivered by the Mills Company to the bank as “collateral security” said: “To secure the payment of this note ... we have hereto attached, as collateral security, the following Warehouse Receipt, No. 3, hereto attached.” They put aside the words “receipts” and “warehouse receipt” in the obligation of the bond. They say it was not “warehouse receipts” that the Guaranty Company agreed to redeem, but ‘ ‘ other instruments, ’ ’ although the evidence absolutely fails to show that any other instruments were ever “issued” or delivered; and although their petition does not count upon “other instruments,” but upon “warehouse receipts.” They not only “put •aside” these words in the bond, but they put aside these words in the receipt itself, namely, its bold caption, “Warehouse Receipt,” and the words, “Re-' ceived in Warehouse and Elevators A and B at Rich Hill, Mo.,” and “the surrender of this receipt and payment of charges,” and say that the caption, and the word “Received” and the words “Warehouse and Elevators” should be eliminated and that only the remaining words, namely, “five thousand bushels of grain and its product, subject only to the order hereon of the National Bank of Commerce” is of any importance, and that “it was immaterial whether the commodity was stored in the mill’s elevator or warehouse at the time the agreements were made. ’ ’ In other words, they undertake to construct for. the parties, and ask this court to construct for them, a contract which they did not construct for themselves, and they do that, and ask the court to do it, by putting aside many of the vital words of the bond, the receipts and the notes. (2) Whether the receipts be considered warehouse receipts, or -pledges or chattel mortgages or as constituting an equitable lien, they are either unenforceable for lack of definiteness, or if enforceable at all in no event could the judgment have exceeded $20,150. The judgment was not for the value of any grain but was arrived at by calculating principal and interest on each of the four notes mentioned, interest being calculated at 8 per cent. Can the Guaranty Company be compelled to answer for wheat, worth 75 cents, instead of corn, worth 4-0? There are cases holding such a contract to be void. “A warehouse receipt is invalid if it does not describe the property sufficiently to make its identification possible.” 40 Cyc. 410; Ferguson v. Bank, 29 Am. Bep. 418, 14 Bush (Ky.), 555; Baffles v. Wichelhaus, 2 H. & C. 906, 33 L. J. Exch. 160; Gloeckner v. Kittlaus, 192 Mo. 478; Watson v. Gross, 112 Mo. App. 616; Price v. Atkinson, 117 Mo. App. 52; Bank v. Metcalf, 29 Mo. App. 394; Chandler v. West, 37 Mo. App. 635; Stonebaker v. Ford, 81 Mo. 537; Carroll & Co. v. Hamilton, 30 La. Ann. 522; Sanders v. Voorhees, 36 Kan. 141; Clark v. Voorhees, 36 Kan. 144; Meredith v. Kunze, 78 Iowa, 111. (3) If the receipts are void, the bond is void. Whatever they were, it was given to redeem them, and for nothing else. Daugherty v. Savage, 28 Conn. 146; Poor v. Merrill, 68 Iowa,' 436; Jones v. Fisher, 116 111. 68. (4). The “warehouse receipts” for grain and its product were the only things received by plaintiff bank as collateral security for the payment of the notes.. No “other instruments evidencing that it is holding grain” were delivered by the Mills Company to the bank. No other “instrument” is counted on in the petition. The petition sets out each “warehouse receipt” by its date and the amount of “grain and its product” called for in it, and makes it the basis of the action, and does not claim or aver that any “other instruments” were “executed and delivered to this plaintiff.” It was the “receipts,” and not other “instruments,” that “are intended to be delivered either in the case of sale or pledge or as evidence of a bailment. ’ ’ And, therefore, in this case, it was only the ‘ ‘ receipts ’ ’ that the Guaranty Company agreed that the Mill Company would “at all times and in all cases faithfully redeem” and not “other instruments issued by it.” (5)'Whether the issuance and delivery of the receipts to plaintiff as “collateral security” constituted a sale or a chattel mortgage, or a pledge, or an equitable lien, the Mill Company was liable only as bailee, (a) The issuance and delivery of the receipts was a pledge of the grain and its product. The bond recites: “And, Whereas, it is contemplated by the parties hereto that warehouse receipts, to be issued by the Flanagan Mills & Elevator Company, may be hypothecated with said National Bank of Commerce as collateral security. Taylor v. Hudgins, 42 Tex. 247; Watch Case Co. v. Dougherty, 62 Ohio St. 593; Spect v. Spect, 88 Cal. 441. In 21 Cyc. 1720, it is said that “hypothecate” means “to pledge a thing without delivering possession of it to the pledgee. ’ ’ If that is a correct definition then the issuing and delivery of these “warehouse receipts” to the bank “as collateral security” for the payment of the notes was a pledge of the commodities described in them. Their “hypothecation” constituted a pledge. “In those jurisdictions where a warehouseman may issue a valid warehouse receipt for his own goods a valid pledge may be effected by the delivery of such receipt.” 40 Cyc. 426. (b) There is only one other theory upon which these receipts can be held to be legal instruments, and that is that they constituted neither a pledge, nor a sale, nor a chattel mortgage, nor a lien of any kind, but an unconditional agreement to deliver to the bank a certain number of bushels of grain and its products upon the bank’s demand. If their execution and delivery constituted such an agreement, then they constitute an agreement that is entirely outside the terms of the bond, and therefore the Guaranty Company is not liable. What it guaranteed that the Mill Company would redeem were ‘ ‘ warehouse receipts to be issued by the Flanagan Mills and Elevator Company” when “hypothecated with said National Bank of Commerce as collateral security,” “which receipts are intended to be delivered ... as evidence of a bailment.” Before this court can hold that these receipts constituted an unconditional agreement to deliver the grain, it must make a contract for the parties that they did not make for themselves; for no such agreement is found in the written instruments. (6) A warehouseman, having property of his . own stored in his own warehouse, may, in the absence of prohibitory statutes, issue receipts thereon, and pledge the property as collateral security for money borrowed by him from the pledgee, by the delivery of such receipts. In Indiana, Wisconsin, Ohio, Pennsylvania and Massachusetts, and perhaps one or two other states, it has been held that the owner of grain or other commodity stored in his own warehouse cannot issue a warehouse receipt thereon that will be valid as to other creditors or innocent purchasers without notice. But we have been able to find no case that holds that such a receipt is invalid as between the parties. On the contrary, in the very recent case of Pattison v. Dale, 196 Fed. 5, receipts issued by a distiller for his own whiskey stored in his own warehouse in Ohio, were held, as between him and the holder with whom he had deposited them as collateral security for money loaned, to be valid, both as pledges and as warehouse receipts. Furthermore, in none of those states were there any statutes like our sections 11951, 11952, 11957 and 11959, R. S. 1909. In Kentucky, Michigan, Minnesota, Alabama, Georgia, Virginia, North Dakota, and other states, the owner of a warehouse or elevator may issue a valid warehouse receipt for his own goods stored therein, and pledge them as collateral security for money borrowed, and a delivery of the receipt is a symbolical delivery of the, property pledged; and in every state having a statute like our section 11952, such receipts are not only held to be. valid warehouse receipts as between the pledgor and pledgee, but as to third parties when they are indorsed in the manner prescribed by statute. Respondent’s counsel say that “the Mills Company which issued these instruments was not engaged in the business of storing goods for others for compensation, and therefore not a warehouseman.” That is not the test. In Love v. Storage Co., 143 Fed. 13, it is said: “An actual warehouse is not essential to the warehousing of goods. They may be warehoused upon a parcel of ground inclosed, or open, or partly so. And they may be warehoused upon what are the owner’s premises at the lime of the warehousing, and that, though they may be on those premises and without changing their location thereon. The only thing essential to the warehousing of goods is that their possession be changed from that of their owner to that of the warehouseman.” That was said in a case where the owners of lumber had stacked it on four acres of fenced ground, and issued warehouse receipts upon it. Sec. 11952, R. S. 1909, is found in several other states, and in every one of them, where it has been construed by the courts, it has been held to authorize the owner of any kind of a warehouse to issue a valid warehouse receipt upon his own goods stored therein, and pledge them to the lender as collateral security for a loan of money to the debtor, Bank v. Barnes, 82 Ala. 607; Cochran & Fulton v. Ripey, 76 Ky. 495; Ferguson v. Bank, 77 Ky. 555; 30 Am. & Eng. Ency. Law, p. 74; Broadwell v. Howard, 77 111. 305; Parshall v. Eggert, 54 N. Y. 21; State ex rel. v. Robb-Lawr^nce Co., 17 N. D. 257; Herrick v. Barnes, 78 Minn. 476; Bank v. Wilder, 34 Minn. 157; Bank v. Bank, 89 Minn. 119; Milliorn v. Clow, 42 Ore. 173; Millhiser Co. v. Mills Co., 101 Ya. 579; Insurance Co. v. Eiger, 103 U, S. 1. c. 356; Banking Co. v. Peacock, 103 Ga. 171; Note to State to use v. Robb-Lawrence Co., 16 L. R. A. (N. S.) 227; Herrick v. Barnes, 78 Minn. 475; Bank v. Hibbard, 48 Mich. 118; Hurley v. Santa Fe Ry., 213 U. S. 126, 134^ Union Trust Co. v. Wilsop, 198 U. S. 530; Bank v. Harkness, 42 W. Ya. 156, 164; Pattison v. Dale, 196 Fed. 5; Gibson v. Stevens, 49 U. S. 398. (7) A bailee for hire is required to exercise only the ordinary diligence of a prudent man to keep the goods for the bailor, and is not responsible for their loss by fire, unless the fire is the result of his own fault or neglect. 40 Cyc. 431; Cox v. Railroad, 170 Mass. 129; McLane, Swift & Co. v. Elevator Co., .136 Mich. 664; Bank v. McCrea, 106 111. 292; Milling Co. v. Railroad, 127 Mo. App. 80, 92; Andrew McCollum v. Porter, 17 La. Ann. 89; Rice v. Nixon, 97 Ind. 97; Bottenberg v. Nixon, 97 Ind. 106; American Brewing Assn. v. Talbot, 141 Mo. 674; Security Storage Co. v. Denys, 119 Md. 330, 344; Gashweiler v. Wabash R. R., 83 Mo. 112. (8) The right of plaintiff to recover must be found in the written contract. Unless the bond and the receipts when read together entitled plaintiff to recover from the Guaranty Company, then the judgment cannot stand. ( The intention of the parties must govern, but it is their intention as ascertained from a fair interpretation of the written instruments that must govern. Morgan v. Porter, 103 Mo. 140; Tracy v. Iron Works, 104 Mo. 198; Construction Co. v. Tie Co., 185 Mo. 61; Walker v. Automobile Co., 124 Mo. App. 636; Eaton v. Coal Co., 125 Mo. App. 203; Buck v. Harris, 125 Mo. App. 368 ; Marks v. Mill & Elevator Co., 43 Iowa, 146. (9) Unless the bond itself imposed npon the Guaranty Company an obligation that was greater and more comprehensive than was imposed on the Mills Company by the warehouse receipts, interpreted as warehouse receipts, then the liability of the Guaranty Company is that of a warehouseman and no more. Kilbridge v. Moss, 113 Cal. 435; Drummond v. Prestman, 12 Wheat. 520; Bank v. Strother, 22 S. C. 555; Walser v. Wear, 141 Mo. 464; Railroad y. Smith, 27 Mo. App. 377; Du-pee v. Blake, 148 111. 453; Canton Institution for Savings v. Murphy, 156 Mass. 305. (10) This bond throughout speaks of the receipts as “warehouse receipts.” In both whereas and in the last clause of the obligation it denominated them “warehouse receipts.” The whole engagement shows that the parties were negotiating for the redemption of warehouse receipts, and that the obligors were to be bound only as a warehouseman is to be bound upon valid receipts issued by him, and that there might be no misunderstanding or doubt as to the extent of the obligation the bond says they are to be bound only as a pledgee is bound, or as a bailee is bound. It is immaterial whether the bonds were legal warehouse receipts, for the agreement only was to “deliver the grain demandable by any warehouse receipt issued by” the Mills Company, and the “receipts are intended to be delivered in case of a pledge, or as evidence of a bailment, ’ ’ and thereby the liability of the Guaranty Company was fixed as that of a bailee or pledgee which is the same as that of a warehouseman.
   GRAVES, J.

— This is an action upon the following bond:

“know all men by these presents,
‘ ‘ That we, the Flanagan Mills & Elevator' Company, as principal, and the United States Fidelity and Guaranty Company of Baltimore, Maryland, as surety, acknowledge ourselves to owe and stand indebted to the National Bank of Commerce of Kansas City, Missouri, its successors and assigns, in the sum of twenty-five thousand dollars for the payment of which we bind ourselves upon the following conditions:
“Whereas, the Flanagan Mills & Elevator Company is engaged in the management and operation of elevators and warehouse and cribs attached thereto, for the storage of grain, at Rich Hill, Missouri, which is known as the Flanagan Elevators, A and G, and proposes to issue warehouse receipts and other instruments evidencing that it is holding grain and other commodities, deliverable upon the request or order of another person or his assignee, or that it is under obligations concerning grain and other commodities in said elevator to such other person or his assignee, or by which it agrees to deliver grain and other commodities from said elevator to such other person or his assignee, or to hold it subject to the order of such other person or his assignee, which receipts and instruments are intended to be delivered either in the case of sale or pledge, or as evidence of a bailment; and,
“Whereas, it is contemplated by the parties hereto that warehouse receipts, to be issued by the Flanagan Mills & Elevator Company may be hypothecated with said National Bank of Commerce as collateral security.
“Now, Therefore, If the said Mills & Elevator-Company shall at all times and in all cases fully and faithfully redeem all such receipts and other instruments issued by it, and fully and faithfully comply with each and every provision thereof, or obligation incident thereto, or arising therefrom, and at all times deliver the grain demandable by any warehouse receipt or other instrument issued by it, in connection with the business of conducting said elevator, then this obligation to be void; otherwise to remain in full force and effect.
“Provided, However, that this bond is executed with the understanding and agreement and it is made a condition hereof, that said surety may cancel this obligation and its liabilities hereunder, by giving thirty days’ notice, in writing, to said The National Bank of Commerce, or its successors, of its intention to do so, and remaining liable only for such breaches of this bond as may have been committed to date 'of such termination, which shall be thirty days after service of said written notice.
“In Testimony Whereof, the said Flanagan Mills & Elevator Company has caused this instrument to be executed by its president, and attested by its corporate seal, and the. said United States Fidelity & Guaranty Company has caused this instrument to be signed by its attorney in fact, and its corporate seal affixed, by authority of its board of directors, this 18th day of October, 1905.
“(Seal) Flanagan Mills and Elevator Company,
By G. M. Flanagan, Pres.
“(Seal) The United States Fidelity and
Guaranty Company,
“By H. M. Coudrey,
“Attorney in Fact.”
Acknowledged in due form.

. The petition duly pleads the bond, and avers a breach thereof thus:

“That said Elevator Company did not, at all times and in all cases, fully and faithfully redeem warehouse receipts that had been issued by it and delivered to this plaintiff, and did not fully and faithfully comply with each and every provision of said warehouse receipts, and did not deliver, on demand, or at-any time, grain demandable by warehouse receipts which it had issued and delivered to this plaintiff.
‘ ‘ That on thé 31st day of October, 1905, said Elevator Company, for a valuable consideration, executed and delivered to this plaintiff its certain warehouse receipt, whereby it acknowledged to have received 25,000 bushels of grain and its product, and agreed to hold the same subject to the order of this plaintiff (which said grain and its product were represented to be, and were at all the dates herein mentioned, of the value of $20,000); that on the 17th day of November, 1905, said Elevator Company, for a valuable consideration, executed and delivered to this plaintiff its certain other warehouse receipt, whereby it acknowledged to have received 5000 bushels of grain and its product, and agreed to hold the same subject to the order of this plaintiff (which said grain- and its product were represented to he, and were at all the dates herein- mentioned, of the value of $4000); that on the 20th day of November, 1905, said Elevator Company, for a valuable consideration, executed and delivered to this plaintiff its certain other warehouse receipt, whereby it acknowledged to have received 2500 bushels of grain and its product, and agreed to hold the same subject to the order of this plaintiff (which said grain and its product were represented to he, and were at all the dates herein mentioned, of the value of $2000); that on the 2nd day of December, 1905, the said Elevator Company, for a valuable consideration, executed and delivered to this plaintiff its certain other warehouse receipt, whereby it acknowledged to have received 3750 bushels of grain and its product, and agreed to hold the same subject to the order of this plaintiff (which said grain and its product were represented to be, and were at all the dates herein mentioned, of the value 'Of $2000).
‘ ‘ That by virtue of each and every one of said above mentioned warehouse receipts, this plaintiff became entitled to receive from said Elevator Company, on demand, the grain and product thereof therein mentioned, and that on the-day -of-- 1906, this plaintiff demanded of said Elevator Company the grain called for in each and every one of said above mentioned warehouse receipts, but that said Elevator Company then failed and refused to deliver to this plaintiff any and all of said grain called for in each and every one of the above mentioned warehouse receipts, and that upon the failure and refusal of said Elevator Company to deliver said grain to this plaintiff, it demanded of said defendant, Guaranty Company, to make good its promise in said bond contained, and to pay to this plaintiff the damage by it sustained by reason of said refusal, but that said Guaranty Company has failed and refused to do so.”

The record shows the execution and delivery to plaintiff of the several receipts described above, and shows the failure to pay the notes and the failure to deliver the grain mentioned in the receipts, as also the refusal of the surety company, the only appealing defendant, to make good its bond. All the notes and receipts are in the same form, and one of each is all that is necessary to show the contract between the parties. Below is one of each:

EXHIBIT NO. 2.
No. 189179
$2000.00 Kansas City, Mo., Nov. 18th, 1905.
v Due Demand. On demand, after date, for value received, we promise to pay to the order of the National Bank of Commerce, of Kansas City, Mo., two thousand dollars, at the National Bank of Commerce, Kansas City, Mo., with interest from date until paid, at the rate of eight per cent per annum. To secure the payment of this note and of any and all other indebtedness which we now owe to said Bank, or may owe it at any time before the payment of this note, we have hereto attached, as collateral security, the following Warehouse Receipt, No. 3, hereto attached.
“All dividends and maturing coupons pending life of this loan shall be paid to holder of this note,
Flanagan Mills & Elevatob Co.
Charles H. Flanagan, Seo’v.
EXHIBIT NO. 3.
WAREHOUSE RECEIPT
No. 3 FLANAGAN MILLS 1ND ELEVATOR
Kansas City, Mo , Nov. 17th, 1905. •
Received in Warehouse and Elevators A. B. at Rich Hill, Mo., five thousand bushels of grain and its product, subject only to the order hereon of National Bank of Commerce, Kansas City, Mo., and the surrender of this receipt and payment of charges.
It is hereby agreed by the holder of this receipt that the Grain and Product of Grain herein mentioned may be stored with other Grain and Product' of same quality.
Flanagan Mills & Elevator Co.
Charles H. Flanagan, Sec’y.

Counsel for the. surety company thus outlines the answer in the case:

“In addition to a general denial the separate answer of the United States Fidelity & Guaranty Company admits that as surety only, and not otherwise, it executed the contract sued on and that its provisions were as charged. It is then alleged that the warehouse receipts mentioned in the petition are not in fact warehouse receipts under the laws of this State and that as such they are illegal and void, and that the same recites the fact to be that the Elevator Company had received from the plaintiff certain commodities whereas in fact no commodities of any kind whatsoever had been actually received into store or upon the premises the property of the plaintiff. The answer then alleges that by the terms of the contract sued on the defendant became liable thereunder ‘only for the honesty and faithfulness of the said Flanagan Mills & Elevator Company in caring for, holding and keeping the said grain mentioned in said receipts in its said elevator or elevators as a warehouseman, and not otherwise, and that same should be forthcoming and deliverable upon such conditions and penalties as the laws of this State impose upon warehousemen only, and not otherwise. ’ That on the--day of--- 1906, and after the making of the contract or bond sued on the grain mentioned in the receipts made the basis of this suit were wholly destroyed by fire without fault or neglect on the part of the Flanagan Mills & Elevator Company, by reason of which fact as alleged, no liability existed from defendant to plaintiff.
“It is further alleged that if the contract or bond sued on is susceptible of any other construction than that the same was and is a contract or bond for the faithful honest keeping and caring for and delivery of the grain in question by the Elevator Company as a warehouseman that said contract is ambiguous in that such construction would convert the said contract into a policy of fire insurance and not a contract for the faithful delivery of the grain, which bind of contract the defendant had no power or authority in law to issue and that such contract ought not to be so construed. ’ ’

Reply placed in issue all new matters in the answer.

The elevator of the milling company was destroyed by fire January 29, 1906, and the evidence tends to show that the grain and its products mentioned in the receipts were in the elevator at the time.

Upon trial before the court plaintiff had judgment against both defendants in the sum of $21,578.40, and the surety company alone appealed. Other matters, if material, will be noted in the course of the opinion.

I. This case turns upon the construction to be given the several written instruments set out in the statement of facts. If the language of either is ambiguous or doubtful, extrinsic evidence may be considered to determine the meaning of the language used. This general rule of construction is too well established to require citations. In ^ this case much depends upon the nature , Gf the written instruments, sometimes designated as warehouse receipts. Whether they are such is largely determinable by the facts, rather than the words. In none of the written instruments is it declared that the Flanagan Mills & Elevator Company was a warehouseman. The bond in suit mentions both notes and other instruments, including receipts. In other words, it states that the Flanagan Mills & Elevator Company was going to borrow money from the plaintiff’s bank, and give as -collateral security receipts or other instruments issued by the said milling company. To determine the meaning of the written instruments called receipts, we think that in view of the uncertainty of the language used in the several instruments involved, we can go not only to the three instruments themselves, but to the extrinsic proof. We can go to all the written instruments, because they pertain to the same subject matter, and we can go to the extrinsic evidence, because the language used is ambiguous.

The question is, did the parties understand the written instruments put up as collateral security to be in fact real and true warehouse receipts, or the ‘ ‘ other instruments” mentioned in the- bond.

The contention of- the defendant is that the relation between plaintiff and the Milling Co.' was that of a bailor and bailee, and that the bailee is not responsible for the destruction of the property by fire, unless such fire was the result of negligence. The situation of the parties being considered, it cannot be said that this relationship existed, and hence a discussion of the liability or nonliability on the idea of such a relationship need not be made.

That the milling company was not doing a warehouse business is clearly indicated by the bond. There is no suggestion therein that it was so engaged. On the contrary, it is clearly indicated that the grain and grain products which were to be in its mill and elevator were its own property and were to so continue. All through the record evidence it appears that this fore-east in the bond is borne out by the facts. In some three places in the record evidence it clearly appears that the grain bought and stored by the milling com-, pany was for its own use in mills at Rich Hill, Missouri. It was used in the ordinary course of a milling business, and of course would be changed from time to time by the purchase of new material, and the distribution of mill products. Neither the bond declares that the milling company was in the warehouse business, nor .does the proof show it. On the contrary the proof shows that such company was in the usual milling business, buying large stocks of grain at advantageous times and intervals, and getting its money through the banks for the purpose of these purchases. If the milling company was not in fact a warehouseman, this goes far in assisting us in determining the construction to be given the written instruments involved in this record. All the evidence tends to show that it stored and kept no grain or grain products, except such grain as it purchased, and purchased at least partially with money borrowed from the plaintiff. When purchased the title of the grain was in the milling company, and when the grain was ground in the mill the products were likewise the property of the milling company. This title was never changed, unless by this written instrument. The possession, in fact, was never changed. The instrument itself does not undertake to segregate any particular property or designate any custodian except the milling company, so as to even make the written instrument a symbolical delivery of the property to the plaintiff. But we are going adrift, from the thought with which we started in this paragraph, i. e., that the milling company was not in fact a warehouseman, and was never so understood to be by any of the parties interested. Nothing in the written, instruments show the milling company to he a warehouseman, and the proof shows that such company was not a warehouseman. It is evident that the parties at the execution of the receipts, and at the previous giving of the bond in suit, fully understood that the milling company was not a warehouseman. With this conclusion, drawn from the surrounding facts, there remains the question of determining the character of these so called receipts.

II. When we consider the note, and the reference therein to the so called warehouse receipt, and the receipt itself, together, as we must do, it is clear that what the milling company really did, was, that it agreed to hold in its possession of its own grains and grain products the amount named in the reÍP^ which grain and grain product it agreed to deliver to plaintiff upon its demand in the event the milling company failed to pay the note on demand made by the bank.

The alleged warehouse receipt does not say from whom the grain and grain product was received by the milling company, but the extrinsic evidence shows that it did not receive it from the bank, but received it from itself. It held it not for the bank, but held it “subject only to the order hereon of National Bank of Commerce. 1 It did not segregate and set aside such grain and grain products, so the same could be identified, but on the contrary provided that it should be stored with other like grain and grain products. So we reiterate, that when we take the peculiar wording of this instrument, and consider it alone with the note, and other evidence, we are forced to the conclusion that it is an agreement by the milling company to deliver from its store the amount of grain and grain product in the event the bank demanded its delivery, which demand it could not make until there was default ill the payment of the note after legal demand for its payment.

Some times the meaning of contracts can best be had by a process of elimination. First it is clear that the written instrument, whether it be an agreement to deliver grain upon demand, or a warehouse receipt, was clearly intended for collateral security. The bond was given to make this collateral security absolutely safe. It is presumed that the parties intended a contract that was valid and effective rather than one which was invalid and ineffective. With this in view let us begin the process of elimination, (a) There is no sale of the grain or grain products, and defendant does not so contend, (b) It is no mortgage, because it possesses none of the elements of a mortgage, and defendant does not content the said written instrument to be a mortgage, (c) Neither is it a pledge, because there was no delivery, either in fact or otherwise/- One can’t pledge his property to another by making delivery to himself, rather than to the pledgee. “To constitute a pledge, the pledgee must take possession; and to preserve it, he must retain possession.” [Jones on Pledges, (2 Ed.), sec. 23.]

To like effect are: Bank v. Frank, 12 Mo. App. l. c. 465; Conrad v. Fisher, 37 Mo. App. l. c. 368; Bank v. Trust Co., 135 Mo. App. l. c. 375. Of course a pledge may be completed by a delivery to a third person for the pledgee, but such is not the case here. Not only was there no delivery, but there was not even a segregation of the grain and grain products for identification.

As said in the first instance, the parties intended collateral security. This is clear. The law presumes that they intended to make an instrument that would legally effectuate their intents. If so there is but one other construction, and that is that it is an agreement to deliver the grain and grain products to the bank upon demand, provided the emergency for demand had arisen, and the bank was by such emergency empowered to make demand.

It is one of the well settled rules of construction that if a contract is fairly susceptible of two constructions, one making it legal and the other illegal, we should give it the construction which would make- it effective and legal, rather than .the other. [Lamar Water & E. L. Co. v. Lamar, 128 Mo. 188.]

III. We need not go further than the receipt itself to find ambiguity of expression, such as to allow us to go to extrinsic proof to get a right construction. The receipt fails to state from whom the grain and grain products were received. It likewige fails to make clear the nature of the order which might be made by the bank.

Much is left vague, and remains vague, until the whole transaction is placed in evidence. When the whole transaction is placed in evidence, it appears that Flanagan Mills & Elevator Company was a milling concern, and only handling and storing grain and mill products to be used in the ordinary course of its business. It was not a warehouseman either at common law or under the statute, because not engaged in the business of receiving and storing goods, wares, and merchandise, for others.

In such case the mere form of the receipt is not sufficient to make it a warehouse receipt. Proof must be made that the party issuing the receipt was in fact a warehouseman. No such proof appears in this case, but in fact the proof is to the contrary. Dixon, C. J., in Shepardson v. Cary, Executor, 29 Wis. l. c. 42, says:

“The court could not take judicial notice that they were warehousemen,; nor presume it as a fact from the mere issuing of the receipt. Actual proof was necessary in order to make an effectual transfer of the property in that way; for otherwise it would be competent for every person, whether warehouseman or not, thus to dispose of personal property in his possession, to the great embarrassment and deception of subsequent purchasers, creditors and others.
“To uphold the receipt as a proper warehouse document, transferring the title to the property and operating as a good constructive delivery of it to the vendee, it must in all cases distinctly appear that it was executed by a warehouseman — one openly engaged in that business — and in the usual course of trade, without fraud or intention of fraud or bad faith on the part of the person receiving and seeking to enforce title under it. In the former case, therefore, if for no other reason, the plaintiff could not have maintained title against the defendant upon the instrument as a warehouse receipt, because there was no proof of the business character of the makers, or evidence that they were warehousemen.”

To like effect in Bank v. Whitehead, 149 Ind. l. c. 575:

“It follows that a public warehouseman would have no more power to issue a warehouse receipt upon his own property in his warehouse, as security for a debt unless there was a statute expressly authorizing it, than would a debtor who is not a warehouseman. Where a debtor who is not a warehouseman issues a receipt purporting to be a warehouse receipt, on property in his possession and owned by him, for the sole purpose of securing a creditor, the same is not in any sense a warehouse receipt. [Conrad v. Fisher, 37 Mo. App. 352, 8 L. R. A. 152, 153; Mechanics’ Trust Co. v. Dandridge, 37 S. W. (Ky.) 288; Sinsheimer v. Whitely, 111 Cal. 378; Geilfuss v. Corrigan, 95 Wis. 651; National Exchange Bank of Hartford v. Wilder, 34 Minn. 149; Steaubli v. Blaine Natl. Bank, 11 Wash. 426; Thorne v. First Natl. Bank, 37 Ohio St. 254; Union Trust Co. v. Trumbull, 137 Ill. 146, 164; Jones on Pledges, secs. 325, 326.]”

It will be-observed that the Indiana court cites with approval some of the opinions from our Courts of Appeals we have cited, supra. The Pennsylvania court in Bank v. Jagode, 186 Pa. St. l. c. 563, says:

“The Act of September 24, 1866,' P. L. (1867) 1363, makes a warehouse receipt negotiable to the extent that the person taking a transfer of it by indorsement and delivery is to be deemed the owner of the goods therein specified. By the general law governing such instruments this means that the transfer of th§ receipt is a constructive delivery of the goods. If therefore the receipt under which the plaintiff claims was a valid warehouse receipt within the statute the plaintiff’s title must prevail, notwithstanding the good faith and priority of the appellants’ actual possession.
“But in order to have this effect, the requisites of the statute must be complied with, and plainly the first of these is that there must be a receipt issued from a bona,-fide warehouse. The act does not prescribe any form of receipt, and it is conceded that the one in controversy is sufficient in that respect. It purports to be issued by a warehouseman, and to be for goods held on storage and deliverable on the order of the depositor and the return of the receipt.
“Nor does the act define a warehouse or a warehouseman, but uses the latter word in connection with ‘Wharfinger or other person’ (ejusdem generis, Bucher v. Comm., 103 Pa. St. 528) in its ordinary signification of one who carries on the business of receiving and keeping goods on storage for the owners, for compensation. The act prohibits the issue of a receipt unless the goods shall have been' actually received into store or upon the premises of the warehouseman; the issue of any second or duplicate receipt while the first is outstanding, without writing the word duplicate across the face of the second; the delivery of any goods receipted for except on surrender of the receipt; and the sale, incumbrance, etc., by the warehouseman of goods receipted for. These provisions plainly contemplate that the warehouseman shall be one engaged in the business, and also that he, shall be another than the owner of the -goods. A large part of the security of the holder of the receipt for the actual production of the goods when called for is the business interest and good faith of the warehouseman, and the penal consequences of any breach of duty by him. This security would be greatly diminished, if not rendered worthless, if any owner could' choose to say his goods were on storage with himself and issue receipts which should pass from hand to hand for value, while the goods remained under his own control, or subject to levy by his creditors.” [See also: Union Trust Co. v. Trumbull, 137 Ill. l. c. 164; Thorne v. Bank, 37 Ohio St. l. c. 258; Steaubli v. Bank, 11 Wash. 426.]

Nor do sections 11951 and 11952 of our statutes change the situation. These statutes refer to ware-housemen, and have no application whatever to persons not engaged in that business. The word “ other person” used in the latter section, must under the rule ejusdem generis, be held to mean warehouseman or wharfinger or a person engaged in a similar business.. [Bank v. Jagode, supra: Bucher v. Comm., 103 Pa. St. 528.] It does not refer to a mere merchant, or manufacturer. The proof in this case fails to show a warehouseman and therefore the written receipt can not be held to be a warehouse receipt.

IV. Nor will it do to say that the bond executed by this defendant appealing here was not one fully within the charter powers of said corporation. Section 8 of its charter reads:

“Sec. 8. And be it further enacted, That said Company shall have power to guarantee, endorse and secure payment and punctual performance and collection of notes, debts, bill of exchange, contracts, bonds, accounts, claims, rents, annuities, mortgages, ehoses in action, evidence of debt, certificates of property of value, checks and title to property, indebtedness of individuals, of companies, partnerships, contracts, loans of states, cities, counties and municipalities, on such terms or commissions as may be agreed upon or established by said Company and the parties dealing therewith.”

This is as broad as language can make it. They were 'empowered to guarantee the faithful performance of contracts, among divers other things. If the contract is as we construe it, i. e., that the milling company agreed to turn over the amount of grain and grain products mentioned in the collateral instrument upon demand, after default in the note, then a failure to turn it over breached the bond. This was the theory of the trial court. The amount of the verdict is well within the evidence, and the judgment should be affirmed. It is so ordered.

All concur except Woodson, C. J., absent, and Bond and Bevelle, JJ., not sitting.