text:
    HARRIETT McQUITTY v. R. L. WILHITE et al., Appellants.
    Division One,
    December 24, 1912.
    1. SPECIFIC PERFORMANCE: Testimony of Black Witnesses. The fact that the witnesses of the aged black woman who sues for the specific performance of an oral promise of a white man to give her forty acres of land, were black, and that, the testimony of some of them was indistinct on dates and lacking in precision, is to be taken in just relation with the other fact that two experienced and learned trial chancellors have rendered judgment in her favor based upon their testimony.
    2. -: Oral Contract to Convey Land: Colored by Fact That Illegitimate Children Were Born. The fact that the plaintiff, a black woman, bore two children to the unmarried white man who she alleges promised to give her forty acres of land if she would remain with him until his death and perform household duties, which she did, does not supply* a legal consideration for the contract, nor should it alone discredit the contract or avoid it.
    S. -: -: Danger of Imposition and of Doing Injustice. While danger lurks in a case to specifically perform an oral contract to convey land after the promisor is dead, and rigid rules govern and must be observed, yet the court should also be alert to avoid the other danger of doing injustice to a faithful and confiding promisee, from whom, taking advantage of her ignorance and helplessness, the promisor reaped performance, and while doing so procrastinated and dallied with his promise and died without performance on his part.
    4. -: -: Reasonable, Etc. Where the oral agreement to convey the land for services to be performed, is not improbable; the amount of land claimed is not excessive when compared with the amount of the promisor’s estate and the many years of peculiar service; there are facts to induce a conclusion that the contract was likely to be made; the promisee relied upon it, and performed on her part; and the services contemplated by the contract were not to be readily recompensed by mere money, and are referable to the contract, it will be specifically performed.

      Appeal from Boone Circuit Court. — Eon. N. D. Thurmond, Judge.
    AFFIRMED.

      W. M. Williams and E. W. Hinton for appellants.
    (1)The evidence was wholly insufficient to establish and contract whatever on the part of deceased to give or devise land to the plaintiff. Forrester v. Sullivan, 231 Mo. 345; Collins v. Harrell, 219 Mo. 279; Wales v. Holden, 209 Mo. 552; Rosenwald v. Middle-brook, 188 Mo. 58; Kinney v. Murray, 170 Mo. 700. (2) The proof fails to establish any definite contract or understanding, to say nothing of the one pleaded. Oliver v. Johnson, 238 Mo. 359; Collins v. Harrell, 219 Mo. 279; Rosenwald v. Middlebrook, 188 Mo. 58. (3) There is no equity in the claim because it does not appear that the service's were rendered because of the alleged contract and in performance thereof, or that there was any unjust enrichment impossible to compensate in money. Collins v. Harrell, 219 Mo. 279; Berg v. Moreau, 199 Mo. 434; Rosenwald v. Mid-dlebrook, 188 Mo. 93.

      J. L. Stephens for respondent.
    (1) To deny specific performance would work a fraud and a hardship upon plaintiff and in equity and all good conscience, plaintiff is entitled to a decree of specific performance. This contract and its fulfillment to the letter on the part of the respondent is irrefutable; sealed by the ties of flesh and blood.. What stronger token or sign of a disposition on the part of the deceased to carry out an agreement could be made. Nothing but death could or did prevent. The statements made by the deceased in regard to having given the respondent the forty acres of land described in the petition -are clear and convincing, and the reasons given therefor all go to show that the contract was made and that deceased was firm in his purpose to execute it on his part before death. (2) Complete performance of a contract, though not in writing, by one of the contracting parties, takes the case out of the Statute of Frauds, and a parol promise to leave property in consideration of personal services is good under the same circumstances, and an ac- ■ tion by bill in equity is proper to vest title in plaintiff. Blees v. Jenkins, 129 Mo. 647; Suggets v. Carson, 26 Mo. 221; Self v. Cardell, 45 Mo. 345; McDonald v. Brayner, 63 Mo. 461; "Winters v. Cherry, 78 Mo. 344; Carney v. Carney, 95 Mo. 353; McDermott v. Sharkey, 91 Mo. 647; Sutton v. Hayden, 62 Mo. 101; Wright v. Tinsley, 30 Mo. 389; Gupton v. Gupton, 47 Mo. 37; Berg v. Moreau, 199 Mo. 416; Healy v. Simpson, 113- Mo. 340; Nowack v. Berger, 133 Mo. 24; Alexander v. Alexander, 150 Mo. 579; Lyenn v. Hocka-day, 162 Mo. Ill; Hall v. Getman, 121 Mo. App. 630; Goodwin v. Goodwin, 172 Mo. 48.
   LAMM, J.

Plaintiff, a black woman (well towards, if not over) eighty years of age, sues for performance in specie of a contract by one W. to convey to her forty acres of land, worth, say $2000. Prom a decree in her favor, defendants, the collateral heirs of W. (now deceased) appeal.

•The single question is whether the evidence supports the decree.

About the close of the Civil War plaintiff came to W.’s plantation in Boone county as his housekeeper. He was then a widower and never remarried. He had an only child who died and left no offspring. We take it that at all times in hand he had a considerable plantation and subsequently added to it. He ran his plantation solely with negro help, and if there were any white folks about him on the plantation it is not disclosed. In 1877 he acquired a tract known as the “Whiteside place,” and it is a described forty acres of this tract that is the subject-matter of this suit. Plaintiff was about eighteen years old when she became such housekeeper. She seems to have been married, but when is dark, and so far as we can see her husband, to use a favorite phrase of Judge Eat, “cuts no figure in the case,” and is a negligible quantity. W. died in 1905, a man of prominence, intestate and leaving a large estate.

In substance the petition charges' that about 1878, W. promised plaintiff the land if she would remain with him until his death and perform the household and other duties enumerated in the petition. (The language of the petition is broad enough, when liberally construed, to cover a conveyance or a devise.) It further charges that plaintiff relied upon the promise, accepted it in good faith,, entered upon the performance thereof and fully performed on her part. That at the close of his life, in pursuance of his promise, W. was about to make the conveyance but sickened and died without the opportunity. It is further alleged that plaintiff bore W. two children.

The answer was a general denial.

Plaintiff brought a prior suit in two counts. In one count she claimed a money recompense for services as housekeeper for over forty years. In the other she sued for specific performance, as in this suit. Cast below on the merits on the first count in the' first suit she abided the judgment. Successful on the second count, the then defendants (administrators of W.) appealed. We reversed the judgment on the second count because the heirs of W. were not parties. [218 Mo. 586.] Thereupon she brought the present suit.

Plaintiff’s uncommonly long-continued, manifold and singular services to W. are abundantly shown by the testimony. Practically the quantity and quality of her services are conceded by appellants. Defendants content themselves on that behalf by putting in testimony tending to show that plaintiff received and ■contracted to receive fonr dollars per month for "her services, together with one half the chickens, eggs and bntter produced on the plantation, after deducting what was needed for the table. The extent of table demands or of her revenue from chickens, eggs and bntter are only darkly indicated, but the latter seems at times to have amounted to something of substance. She seems also to have sold feathers, but whether she was the sole beneficiary of the feathers marketed is not so clear. She seems to have been ■deemed worthy to do some if - not all of the marketing for W. in household supplies and to be put in charge of his extensive plantation in his absence, transmitting his orders to his black employees, looked after their observance and, pro hae vice, acting as overseer. That he had marked confidence in her integrity, capacity and disposition to serve him also appears. It is certain, too, that he planned to keep her by him and felt grateful to her. We get glimpses of her diligent faithfulness in her master’s field, garden and dairy, for a life time. She lived in a tenant house in his dooryard, had the key to the smokehouse and farm supplies, was trusted to supply the men and report the Items to her master. We take it she was his sole house servant, as such had charge of his house, and (in and about his household affairs and personal needs) did all, to use the language of the witness, “a woman could do.” There is testimony that towards the end (that is, before W. died) she became crippled in his service, but there is nothing to show she did not live up to high watermark in quality of service as long as he lived. There is also uncontradicted testimony that she bore him two children, a boy and a girl, long since grown. But such sinister relation is not alleged, shown or claimed as a consideration for the contract sued' on.

We shall not set forth the details of the evidence' relating to the contract sought to "be specifically performed. We give our own view of the tendency of it. as it fell from the lips -of the black people who testified for her. However, • so far as we can discover,, there were (as said) no white people on the plantation at any time who would be likely to know any thing of the contract. To the contrary there was always a group of colored men cropping and working.. Naturally the testimony would be looked for from them.

One testified that W. promised both him and plaintiff a home apiece if they would stay and work for him until he died. Plaintiff said she would stay, and. did, but witness left in a couple of years. Afterwards, he returned for a business purpose and, being invited to dinner by W., was addressed by him at table in these words: “Now, you see you have lost your home-by not staying and filling out your contract as you agreed to . . . Harriett will get hers.” Another testified he had a grievance against Harriett, we take-it because she was giving him orders and exercising-functions of an overseer over him. At that time W. was away from home, and one of the duties of this witness was to take W. on his trips from the plantation to the “gravel road” where he met the stage and to meet him at the same “forks of the roads” and bring him home on his return. On this occasion he-met him at the stage road and W. inquired “how every thing was going on.” Witness replied: “All right,, except me and Harriett.” Thereat W. admonished witness not to pay any attention to Plarriett. He-pointed out she was a privileged person by telling witness he had promised her forty acres of land on the-Whiteside place, promised to fix her up well if she would live with him until his death. To accent her usefulness and his obligation to her while aiming to-keep the peace on his plantation, by suggesting a device to that end, he continued: “Don’t yon pay any attention to her, but just let on like yon didn’t hear it.” Another, John, who located the time at about five or six years before the trial, related how W. met up with him while making molasses, when Harriett was helping. Noticing her tired gait, W. spoke of it to witness and then spoke in praise of her. She has done, he said, “a heap” of hard work, “she has been worth more than two of his hands and has made more for him than two of his hands.” To that mead of praise witness replied: “Harriett has done that good for yon and yon ought to do the good part for her.” Thereto W. replied he was going “to fix a home for her when he left her if she was the longest liver.” A son of plaintiff (and putative son of W.) testified he heard W. chide the first witness for leaving him, he had “lost out” by breaking his agreement to stay, but Harriett had stayed and he had given her forty .acres, the northwest corner of the "Whiteside tract. There was testimony tending to show that in 1905, just before W. took sick and died, he said he was going to town to have the papers fixed up for plaintiff. There was further testimony tending to show that about that time he spoke to a neighbor about putting in a foundation for a house on the northwest corner of the Whiteside land for Harriett. Once, many years before W. died, plaintiff had left his plantation .and gone to Rocheport, as it appears, from what follows, because he had not fulfilled his promise up to that time. She owned a little home in Rocheport of •small value — say, $150 to $200. Presently returning temporarily and picking geese with a neighbor woman, W. came to the tenant house in his front yard where the plaintiff was and where she formerly dwelt. This .is what happened.

“Mr. (W.) come out from his house, out to Harriett’s house and he set one foot upon the porch and the other on the ground and his hand on the post and said to Harriett. ‘Harriett, where are all the boys?’' that is, his hands. Harriett said, ‘They are all gone-to work.’ He said, ‘I want to know what are yon going to do?’ She said, ‘I am going to pick geese.’ He said, ‘I was not talking about that, I mean about coming back here.’ She said, ‘Mr. (W.), when I left here-before you told me you would give me a home if I would come back and I come back, and I left this time-with the calculation of not coming back unless you will give me a home.’ He said, ‘You don’t know what I will give you.’ She said, ‘No, I don’t know, but you have not told me so.’ ‘If you don’t come back’ he said,, ‘I am going to break up and board.’' And Harriett-said, ‘You have the money to do it with.’ He said,. ‘I know that, but I want to know what you are going to do.’ He said, ‘If you will come back and take care-of me and my things the rest of my days I will give-you a home as I-first promised to do.’ Q. Did he tell her what kind of a home? A. No, he said: ‘I will give you a home and plenty to live on the rest of your days.’ Q. You tell the court whether or not she came back? A. Yes, sir. .Q. How soon? A„The wagon went after her that week. ’ ’

There was other testimony to the effect that W-had planned to build a house for Harriet on the landdescribed in the petition and had long promised to give-her the forty. So, too, it is plain from the proof that she relied on this promise with a full measure of childish confidence not unusual to those of the black race once in bondage. The way she performed the-conditions of the promise on her part has been indicated.

So far as necessary the further tendency of her proof and that of defendants will be noticed further on.

Our conclusion on the whole case made is that the decree stands for affirmance. This, because:

The fact that plaintiff’s witnesses were black and that the testimony of some of them was indistinct on dates and sometimes lacked precision is to be taken in just relation with another fact, namely, that two experienced and learned trial chancellors met those witnesses face to face in court, heard their testimony, listened to the sifting by the cross-examination of veteran and distinguished counsel, and (believing it) one followed the other in founding a decree thereon in favor of plaintiff. That plaintiff bore two children to W. would not supply a legal consideration for the contract. So much is clear. But the other half of that truth is this: Neither must that miserable fact alone discredit the contract or avoid it. While we have no call to moralize on that fact or found a decree on it, yet fortunately we need not permit it to interfere with doing justice to this old black woman, in the light of the pathetic and human story of this case. Courts are fond of referring to the danger lurking in this ■ class of cases and to the rigid rules governing specific performance of parol contracts to convey real estate, when asked for after the death of the promisor. We are cited to cases of that character and have them in mind in our judgment. But the law of each case arises from the facts of that case. Agreeable thereto is the precept, Ex facto jus oritur.

There is another danger (one not to be ignored in equity) viz., that advantage may be taken of the ignorant, the confiding and helpless by those who promise, reap performance and then procrastinate, dally and die without living up to the G-reat Commandment of the law, to-wit: To do just and right and to render to every one his due.

There is nothing improbable in the contract in suit. The amount of land claimed, is not excessive when compared with the amount of the estate and the many years of peculiar service. So, there are facts in this record making it sure to my mind, beyond reasonable doubt, that tbe contract was likely to be made and was actually made. This, to tbe credit of decedent. That tbe contract was relied on is clear; that plaintiff performed on her part cannot be gainsaid; that tbe contract contemplated services not to be readily recompensed by mere money is also clear. When tbe testimony is critically considered, in view of circumstances existing, it is also clear that tbe services rendered were referable to tbe contract.

Something is made of tbe fact that decedent from time to time gave checks to plaintiff, but there was nothing shown in their amount or regularity that in any way militated against tbe contract in suit. We think tbe land promised is sufficiently indicated to permit performance in kind; and if some of tbe testimony is indistinct on that bead, or any other, yet tbe cumulative force of all of it must be considered in tbe final result. It is not one drop, but constant dropping, that wears away a stone, as tbe proverb puts it. Furthermore, in weighing testimony no court is allowed to demand from an ignorant black man testimony rounded out with tbe clearness and precision to be expected of a witness capable of taking on and giving out tbe very clearest impression. It would indeed be difficult to make a case of specific performance, however meritorious, where tbe promisor is dead, if tbe bumble witnesses who alone are likely to know tbe facts, as in this case, were required at every utterance to speak with professional precision. [Sutton v. Hayden, 62 Mo. l. c. 110.]

We stress tbe proposition that there are facts in this case that cannot be consistently accounted for except on tbe theory of tbe existence of tbe following facts: (a) a contract of tbe kind sued upon, (b) for tbe property in question, (c) reliance on that contract; and (d) performance on tbe part of plaintiff.

Our cases bolding in judgment contracts of this character, when they formulate rules, but amplify tbe doctrine Story put in a nutshell (2 Eq. Jnr., 13 Ed., Sec. 764): “It is not only indispensable that the acts done should be clear and definite, and referable exclusively to the contract; but the contract should also be established by proofs to be clear, definite and unequivocal in all its terms.” That pronouncement we have adopted (Alexander v. Alexander, 150 Mo. l. c. 597) and it is the sum of the matter. We find the facts here to come within that rule.

Something is made of the fact that the petition in the first suit laid the date of the contract at an earlier one than does the petition in this suit. At most that variance went to the credibility of the witnesses. Moreover, on dates, the illiterate rely unconsciously on correlated and associated facts to correct their almanac. So in a long, running transaction like this the subject-matter of the contract is likely to be often referred to, by those interested, in familiar discourse.

Decedent being bound in his life time, the failure to perform on his part calls for the interposition of a court of equity and requires that these defendants take this great estate charged with the burden of performing. In so decreeing we but do what they should have voluntarily done out of court from respect to their ancestor’s memory.

Let the decree be affirmed. It is • so ordered. Graves, P. J., and Woodson, J., concur; Valliant, J., does not sit.


source: Caselaw Access Project

author: BROWN, C. PER CURIAM.

license: Public Domain

text:
    JOHN E. McCOLLIN, Appellant, v. JAMES BLACK MASONRY AND CONSTRUCTION COMPANY.
    Division One,
    December 24, 1912.
    NEGLIGENCE: Pleading: Evidence: Order by Foreman, The plaintiff, employed under defendant’s foreman in reconstructing a building, was working from a scaffold below the second floor, one end of which was supported by a rope which ran up through a girder above and was then wrapped around a wooden floorbeam and tied to a wire cable which held the wooden beam in place. Two other, workmen raised a column from the first to the second floor and put it in place with the aid of blocks and tackles' and hand lines. When they had finished, and stood, with the foreman, upon the second floor, the foreman ordered them to “bring down all the rigging there is up here.” In about ten minutes the rope dropped which held the end of plaintiff’s scaffold, and he was injured. Plaintiff’s petition alleges that he was injured as a result of the negligence of the foreman in making said order. Held, that the evidence does not support such allegation, the foreman’s order not including the untying of the rope which held plaintiff’s scaffold.
    Appeal from St. Louis City Circuit Court. — Eon. Charles G. Alien, Judge.
    Affirmed.

      Eenry A. Balcer, Frank E. Richey and Campbell Allison for appellant.

      Jones, Jones, Eocker & Davis for respondent.
   BROWN, C.

The petition states that the defendant is a Missouri corporation engaged in the general contracting business, and that one Anton Pape was its foreman; that the plaintiff is a bridge and structural iron worker, and was on December 19, 1905, employed by defendant in that capacity in erecting a building in St. Louis under the direction of said Pape as foreman. The petition then proceeds as follows: “That while plaintiff was at work as aforesaid, on said day, he, in obedience to the order of said foreman, was on a plank scaffold, suspended below the second floor of said building, one end of which plank scaffold was resting on and supported by an X brace, and the •other end was resting on and suspended by a rope, which rope was passed through a girder above the said plank scaffold and was wound three times around a floor beam or girder of the second floor, and then se-onrely tied by two “half hitches” to a wire cable just ■above the said second floor; that while plaintiff was thus on said plank scaffold and at work as aforesaid, without any knowledge, fault or negligence on plaintiff’s part, said foreman, Anton Pape, although he well knew, or by the exercise of ordinary care might have known, that plaintiff was at work on said scaffold, as aforesaid, carelessly and negligently ordered and directed two of the employees of the defendant then at work on the said building under the direction .of the said Pape, to take up the rigging (which rigging included the said rope supporting the plank scaffold on which the plaintiff sat as aforesaid), thereby ordering and directing the said workmen to take up .and remove the said rope supporting the plank scaffold on which the plaintiff sat, as aforesaid, and that the said workmen, in obedience to the said order and •direction, and in execution thereof, untied the said rope tied to the wire cable as aforesaid, and uncoiled the same, or permitted it to uncoil, from around the ■said girder, whereby the end of said scaffold which was being supported by said rope, as aforesaid, suddenly and without warning of any kind tó plaintiff, was permitted and caused to drop, in consequence of which said negligence, plaintiff fell to the floor below.” He then proceeds to describe his injuries, and asks •.$10,000 for damages.

The answer contains a general denial.

The plaintiff proved that at the time of the accident he was engaged with others under the direction of Mr. Pape, in the work of reconstructing a building-in St. Louis by substituting a heavy steel girder,, three feet in depth, to support the second floor, in place of a wooden floor beam in use for that purpose,, so that all supports might be removed and the entire-room left in the clear. The supports had already been removed from beneath the wooden beam and it was supported at the end near the place where the accident occurred by a wire cable wrapped ground it, extending up through the second floor and fastened at the next floor. The steel girder consisted of two-members placed side by side separated by pieces of metal between them, called separators. These had already been placed in position, supported in some-manner not clearly described, underneath and parallel to the wooden beam, and were ready to have the separators inserted, and be bolted together. This was to be done by the plaintiff and Mr. Connelly, members of the force at work on the building under the direction of Mr. Pape, who told them to construct a scaffold from which to do the work. Mr. McCollin got a yellow pine plank about two inches thick, ten inches- ■ wide and sixteen to eighteen feet long, and laid it on the floor directly under and parallel to the girder, while Connelly went up to the second floor with a rope, which he passed through the space between the members of the girder; Mr. McCollin then took it and tied it securely to the north end of his plank, placed the-south end in an X brace about three feet below the bottom of the girder, and then swung up the other end by the rope so as to level it. Mr. Connelly then wrapped his end of the rope three times around the wooden beam at a point near the wire cable that supported it from the floor above, and then made two half hitches, around the cable, fastening it securely. Mr. McCol-lin then sat upon the scaffold, the bottom of the girder just clearing Ms head, to put in and tighten the holts in the lower half of the girder while Mr. Connelly did the same work on the other half from above. They completed the scaffold and got to work at about three o’clock in the afternoon, stopping for the evening about half past four. They went to work the next morning at eight o’clock, and about,a quarter before ten, while Mr. McCollin was pulling the wrench to tighten a bolt the scaffold went from under him and he fell, his foot going, through a hole in the floor and fracturing his leg badly above the ankle. His first look was at the scaffold. The scaffold knot still held around the plank and the knot consisting of half hitches around the wire cable was-untied, the turns taken off the beam, and the weight of the rope over the steel girder held it suspended about a foot from the floor. The evidence tended strongly to show that the rope was well fastened and would not have become untied without manual interference; that two men named Jones and McVey were working on the second floor; that between nine and ten o’clock the morning of the accident they raised a column from the first to the second floor and put it in place. Mr. Pape then ordered them “to take down all the rigging that was up there and to go down on the first floor.” The rigging consisted of ropes and blocks and chains. There were several pieces of coils, and one rope was rigged up in a set of falls and tackle blocks directly over the place where the rope which supported the scaffold was tied. There were also some lashings or short pieces of rope used to tie on to anything to hook the falls into, and other pieces of rope that were used as hand lines. Mr. Jones, who testified, saw the rope that was tied to the cable that supported the wooden girder with two half hitches. The plaintiff asked questions calculated to elicit testimony that the rope supporting the scaffold was “rigging” within the meaning of this order, which, was excluded by the court and exceptions taken by the plaintiff. When the order was given Mr. Pape, Mr. Jones and Mr. McYey were all standing on the second floor, both Mr. McYey and Mr. Jones being near the rope that supported the scaffold. This was five or ten minutes before the accident.' Mr. Jones, upon Ine cross-examination, testified that he did not untie this rope. He was not asked, either on direct or cross-examination, whether he saw Mr. McYey untie it, and Mr. McYey was not introduced by either party.

At the close of plaintiff’s evidence the court, at the request of defendant, instructed the jury to find for the defendant, and the correctness of this ruling constitutes the only question here for review. It will be observed that the only negligence charged in the' petition is that of Mr. Pape, the foreman, in giving the order “to take up the rigging.” One thing is therefore evident: that unless the order given by Mr. Pape constituted negligence, the court was right in holding that there could be no recovery. The order as proved was in the following words: “Bring down all the rigging that there is up here and come down on the first floor.”

Like most language this expression is to be construed with respect to the circumstances in which it was used. The man to whom it was addressed had just been raising a column from the first floor to the second. The fall, or movable pulley of the tackle, with its hook, hung above the same knot that became untied. This tackle, with the lashings by which it was fastened to its support or took hold upon its load, and the hand lines with which the column had been steadied and swayed to its place when the time came to set it down, were all there, and constituted the rigging-used by the men who did the work. Having accomplished their task nothing is more natural than that they should have been directed to remove it to some other place for use or storage. The word rigging is a common English one, and when applied to the handling of heavy loads, whether of timber, metal or stone or other similar material, means the tackle, lines and fastenings with which the task is accomplished, without regard to the material, whether metal or vegetable, from which they are fabricated. In this case it would be an absurdity to hold that it referred to the ropes in use to support the building or structures in use at the time. Had the men to whom the order was given pro- ' needed to unfasten the wire rope, which supported the wooden floor beam so as to let the second floor down into the room below it would not have shown a more fundamental misconception of a plain order than did the unfastening of the rope which was tied to it and supported the scaffold in use below.

Although in our opinion the evidence tends strongly to show that the rope supporting the scaffold was untied and cast off by the workmen on the-second floor of the building, there is no evidence’ of negligence of the foreman in giving the order in evidence. It follows that the judgment of the trial court must be affirmed and it is so ordered.

PER CURIAM.

The foregoing opinion of BeowN, C., is adopted as the opinion of the court. All the judges concur.


author: BLAIR, C. PEE CUEIAM.

text:
    MORLEY & MOREHOUSE RAILROAD COMPANY et al., Plaintiffs in Error, v. JOHN HIMMELBERGER et al.
    Division One,
    December 24, 1912.
    •1. SUPPLEMENTAL CONTRACTS: Construction. A note, contract, supplemental contract, assignment and deed of trust, made upon the same day and concerning the same subject-matter, must he read and construed together as parts of the same transaction where by their express terms they constitute one single agreement.

      2. CONTRACTS: Construction." Freight Rates. Certain freight rates were guaranteed to defendant’s assignor by the plaintiff railroads, with the provision that his assignee should have the right to ship under those rates its own freight and that of any manufacturing firm or corporation in «which it might own stock. The assignor bound himself and his assigns, -to furnish freight worth $5000 a year in earnings for five years, and by a supplemental agreement the assignee bound itself, as far as practicable, to give the plaintiff railroads the preference on all shipments of freight made by it from or to a certain point. Held, that the assignee is not liable in damages for failing to procure for the railroad the preference in freight beyond $5000 a year from a corporation in which the assignee was interested.
    3. -: -:-: Subsequent Reference. By part “a” of section 5 of an agreement settling freight rates between plaintiff railroads and defendant’s assignor certain specified rates were guaranteed to the assignor on freight from point A to points B, C and D, and part “d” of the same section read, “rates on the same basis to and from other points on said railroad.” Held, that a subsequent reference in the agreement to “rates as aforesaid” includes the provisions of part “d” as. well as of part “a.”
    4.. -: -: -: Lowering Contract Rate. An agreement fixing freight rates and regulating the hauling of freight required the application of the proceeds of certain freight charges to the payment of a debt, and a provision of the agreement says specifically that lower than contract rates, if given, shall not affect any part of the agreement. Held, that a reduction of the rate on one kind of freight covered by the agreement does not avoid the necessity of applying the proceeds from hauling that freight to the payment of the debt.
    5. -: -:-: Time of Payment of Debt. Defendants’ assignor lent the plaintiffs, owners of railroad lines, money to build an extension line. The contract entered into when the money was lent provided that the party furnishing the money, or his assigns, was to ship, for five years from the date of a note mentioned (which the parties knew was made and dated that same day), sufficient freight to produce earnings amounting to $5000 each year, half of which sum was to-be applied each year to the payment of the said note evidencing the debt. Held, that the five-year period began to run at the date of the note, and not at the time of the completion of the extension line.
    6. EVIDENCE: Judicial Notice: Constructing Railroad. The Supreme Court cannot take judicial notice of the time reasonably necessary for the construction of a railroad.

      7. CONTRACTS: Construction: Payment: Sum Certain Each Year. An agreement to furnish freight to plaintiff railroad companies in such quantities that one-half the total earnings thereon should “amount to not less than $2500 each and every year for five years,” which sum was to he applied upon a note executed by the railroads to the shipper, meant-that $5000 in freight earnings must be furnished each year, and the excess in two of the five years cannot be credited on deficiencies in previous years.
    8. -: -:-: -: Note: Credit. Defendants’ assignor lent money to the plaintiff railroad companies and agreed to furnish them freight in such quantities .that one-half the total earnings thereon should amount to not less than $2500 each and every year' for five years, which sum was to be applied upon the note evidencing the debt, the note providing that it was to be paid as in said contract specified and not otherwise. Held, that a deficiency resulting from a failure in a certain year to furnish the requisite amount of freight must be credited on the note up to the amount of $2500.
    9. -: -: Freight Rates: Railroad’s Failure to Furnish Cars. Where shippers agreed to furnish the plaintiff railroad companies freight in such quantities that one-half the total earnings should amount to $2500 each year, which sum was to be applied upon a note executed by the companies, a deficiency resulting from a failure to furnish the requisite amount of freight in a certain year due to the failure of the railroads to furnish cars should not be credited on the note.
    10. -: -: Note: Sale of Interest in Property by Maker: Liability. Defendants’ assignor lent money to the plaintiff railroad companies and agreed to furnish them freight in such quantities that one-half the total earnings thereon should amount to not less than $2500 a year, which sum was to be applied upon the note evidencing the debt, said note providing that it was to be paid'as in said contract specified and not otherwise. Held, after elimination of plaintiff’s claim for damages for breach of contract, that the sale of their railroad by the plaintiff companies would not take away their right to a credit on the note for a deficiency in freight furnished them.
    11. APPEAL: Issues: Not Raised by Pleadings. Issues not raised by the pleadings need not be considered by the Supreme Court.
    Appeal from Cape Girardeau Court of Common Pleas. — lion. Benjamin F. Davis, Judge.
    Aketrmed (conditionally).

      John A. Hope, Giboney Houck, B. G. Ranney and M. B. Smith for plaintiffs,in error.

      Oliver & Oliver and Brown, Geddes, Schmettcm & Williams for defendants in error; R. B. Oliver and Clarence Broivn of counsel;
   BLAIR, C.

This is a suit to cancel a note and deed of trust and for damages for breach of a contract to furnish freight to be transported by plaintiff railroads.

July 1, 1897, Stephen B. Hunter entered into a ■written agreement with the Morley & Morehouse Railroad Company, Houck’s Missouri & Arkansas Railroad Company and Louis Houck whereby he undertook to furnish $20,000 for the purchase of railroad materials, payment to be made on delivery of the rails, etc., to. the Morley & Morehouse Railroad Company. The two railroad companies and Louis Houck agreed to execute the following instrument:

“Five years after date we promise to pay to Stephen B. Hunter the sum of twenty thousand dollars with eight per cent interest per annum from date, all interest payable annually, for value received.
“This note is made in pursuance of a contract entered into on the first day of July, 1897, between the said Stephen B. Hunter and the Morley & More-house Railroad Company, Houck’s Missouri & Arkansas Railroad Company and Louis Houck, and interest and principal is to be paid as in said contract specified and not otherwise and the said contract is hereby declared to be a part and parcel of this note.”

The Morley & Morehouse Railroad Company further agreed to execute to Hunter a trust deed on the proposed line from Morley to Morehouse, and as additional security Louis Houck agreed to deposit in a named bank $20,000 in the bonds of Houck’s Missouri & Arkansas Railroad. By section five of the agree-ment, in consideration of the advance of money made, certain specified freight rates were guaranteed to Hunter and his assigns: (a) on lumber and all other manufactured forest products from Morehouse to Cape Girardeau, East Cape Girardeau and Commerce; (h) on logs and spoke butts from any point on the Morley & Morehouse Railroad, Hunter and his assigns to have the right to haul logs with their own engines and cars at the same rates; (c) on ties and piling to Cape Girardeau and Commerce, coupled with a covenant to give rates on these articles as low as given any other shipper; (d) “Rates on the same basis to and from other points on said railroad, and on other timber and lumber shipped not enumerated.”

These rates were stated to constitute part .of the consideration for the advancement of the $20,000 and to be of the essence of the contract and to this provision was added: “But nothing herein shall be so construed as to prevent the said party of the second part from making a lower rate to the said party of the first part, if they so desire, and if said rates are so made this shall not be construed as in any way or manner abrogating, canceling or nullifying this contract or any part thereof.”

It was also stipulated that Hunter might “transfer his rights as to the said freight rates” under the contract and that his assignee should have the right to ship under contract rates his own freight and that of any manufacturing firm or corporation in which he owned stock or had an interest.

Section eight reads as follows:

“8th. The said party of the first part, for five (5) years from the date of the note aforesaid, hereby agrees, contracts and binds himself, unless prevented by fire or other unavoidable accident to give, furnish and deliver, or cause to be done by others, to whom he may assign or transfer his rights hereunder, to the said Morley & Morehouse Railroad Company and the said Llouck’s Missouri & Arkansas Railroad Company, at Morehouse and other points along said Morley & Morehouse Railroad, freight to be handled by said railroad companies and hauled by them on their said lines, and that one-half of the total earnings on the said freight so furnished under rates as aforesaid, shall amount'to not less than twenty-five hundred dollars each and every year for five years and it is distinctly agreed that the said one-half of said total earnings on said freight, shall be applied éach year, first to the payment of interest on the said twenty thousand dollars, and the balance to the reduction of the principal.
“It is further agreed that monthly settlements shall be made for and on account of the said one-half of said freight earnings and that between the first and tenth of each month the said one-half of the said freight earnings shall be paid over by the said party of the second part to the party of the first part at once and by the said party of the first part at once applied to the payment of said interest and principal of said note pro tanto,- but in case of the inability from any unavoidable cause of said party, or its assigns to cause to be furnished the amount of freight as above promised, then he agrees to take first mortgage bonds on the said Houck’s Missouri & Arkansas Railroad at their market value in an amount sufficient when added to one-half of the earnings of freight furnished by him or his assigns as above provided at the end of each year to the amount of twenty-five hundred dollars per annum.”

Other stipulations follow which it is unnecessary to set out in this connection.

On the same day the railroad companies and Louis Houck executed the so-called note in form as agreed in the contract. Simultaneously with the execution of the contract and note, a supplemental agreement was signed by I. Himmelberger & Company, and all the parties to the first mentioned contract and note, which was by its terms made a part of the first mentioned contract and recited that Hunter, with the knowledge of all parties, executed that contract for and in behalf of I. Himmelberger & Company, and as a convenience to the railroad companies, Louis Houck and I. Him-melberger & Company. By this agreement Hunter bound himself to transfer and assign his rights to I. Himmelberger & Company and that company by virtue of such assignment was to acquire all rights and assume all liabilities under the contract so assigned, ‘ as fully and perfectly as if said I. Himmelberger & Company had been named in said contract.”

Further provisions read thus:

“And it is further agreed by and between all the parties to this contract and agreement that the said I. Himmelberger & Company by virtue of said transfer and assignment to them and in order to enable said railroad companies and Louis Houck to repay the said sum of twenty thousand (20,000) dollars, so advanced, as in said contract set out, as far as practicable, agree, contract and undertake to give the said Morley & Morehouse Railroad Company and said Houck’s Missouri & Arkansas Railroad Company the preference on all shipments of freight made by them, or received by them, from and to Morehouse or other points along said proposed railroad, or extension thereof, over any and all of the routes of railroad in all cases where the said Morley & Morehouse Railroad Company and Houck’s Missouri & Arkansas Railroad Company shall and will carry or cause to be carried by other lines such freight to or from any desired place or point of destination with equally as good advantages to said shipper, said I. Himmelberger & Company, and at the same or lower rate than such other competitive line or lines may make or establish.
“It is also agreed by the parties hereto that although this agreement and contract is detached from the agreement and contract entered into between Stephen B. Hunter and the Morley & Morehonse Bail-road Company, Houck’s Missouri & Arkansas Bail-road Company and Louis Houck, yet in fact it is a part of said contract made contemporaneous with said contract and is only detached from said contract upon the request of said I. Himmelberger & Company, said railroad companies and said Louis Houck for the reason that they do not desire the name of I. Himmel-berger & Company to appear in said contract.”

Other paragraphs guaranteed Hunter protection from liability in- connection with the transaction.

Hunter assigned the note and contract to I. Him-melberger & Company and the Morley & Morehouse Bailroad Company executed its deed of trust as agreed. All these instruments and assignments bore date July 1, 1897, and were executed and delivered at the same time and as parts of a single transaction.

The M. & M. B. B. Co. then commenced the construction of the line, completing it in December, 1897. I. Himmelberger & Company was a partnership composed of I. Himmelberger (now deceased) and the defendant John H. Himmelberger. The partnership owned timber lands near Morehouse and held stock in the Himmelberger-Luce Land & Lumber Company and the Himmelberger-ITarrison Land & Lumber Company, which corporations were engaged in the manufacture and sale of lumber at Morehouse and owned timber lands in that vicinity. In 1897 the St. L., I. M. & S. By. was the only railroad with a line passing through Morehouse and the Himmelbergers were desirous of securing a competing line for the benefit of the industries in which they were interested. Houck’s M. & A. B. B. extended from Commerce to Morley and the plan to build a line from Morley to Morehouse originated with I. Himmelberger and Louis Houck.

After the completion of the road to Morehouse the Himmelberger-Luce Land & Lumber Company shipped much of its output over that line and also shipped over the St. L., I. M. & S. Ry. There is evidence that during 1899, 1900 and 1901 the M. & M. R. R. failed to furnish cars in reasonable numbers and in reasonable time and that for these reasons it was necessary to send shipments over the St. L., I. M. & S. Ry., which were intended for the M. & M; R. R.

Some time during the five year period fixed by the contract it was arranged that the Himmelberger-Luce Land & Lumber Company’s freights should be sent as if prepaid, a plan subsequently abandoned. It appeared that the M. & M. R. R. Company became indebted to Himmeiberger-Luce Land & Lumber Co. on accounts other than the note and it seems to be conceded these claims have been paid.

Louis Houck owned practically all the stock in both railroad companies and his counsel declared on the trial he “absolutely dominated” both roads.

The petition sets up the contracts, note and deed of trust, alleges that I. Himmelberger & Company violated their agreement to furnish freight sufficient to produce earnings to the amount of $5000 per year for the five-year period.fixed by the contract and prays damages therefor; alleges I. Himmelberger & Company bound themselves by the contract to cause all freight of companies and corporations in which they had stock or interest to be shipped over the M. & M. R. R.; alleges the shipment of large quantities of freight by such companies over the St. L., I. M. & S. Ry., demands damages therefor to the extent of $100,000 and prays that the note and deed of trust be cancelled.

The Himmelberger. Realty Co., to which the note had been assigned, answered admitting its ownership of the note and the existence of the deed of trust and averring that certain credits had been given on the note and that there was a balance due for which it prayed judgment.

Defendant John H. Himmelberger in his answer averred that the plaintiff railroad had sold its claim for damages, if any it had, and had no interest therein ; denied any violation of the contract and set np several matters of defense.

The court rendered judgment against plaintiffs on their petition and gave judgment for the Realty Company on the note in the sum of $7144.90. From this judgment plaintiffs appealed.

I. The note, contract, supplemental contract, assignment and deed of trust must all be read and construed together as parts of the same transaction. According to their express terms they constitute one single agreement.

II. On the count for damages for the alleged failure of I. Himmelberger & Co. to secure for the railroad company preference, by the Himmelberger-Luce Land & Lumber Company, in shipments in excess of freight sufficient to produce earnings of $5000 per year during the contract period, plaintiffs were not entitled to recover and the trial court was right in so holding. The contract guaranteed Hunter’s assignee the right to ship or cause to be shipped, under the rates specified, “any freight belonging either (1) to it or (2) any manufacturing firm or corporation in which said as-signee or assignees or any of them shall have and own stock or have any interest” and, as Hunter’s as-signee, the firm of I. Himmelberger & Company bound itself, absolutely, to furnish or cause to be furnished sufficient freight to produce earnings amounting to $5000 per year for five years. This part of the agreement, however, does not relate to the obligations assumed by I. Himmelberger So Company to give plaintiff railroads preference with respect to other and additional shipments. That obligation arises under what we have termed the supplemental agreement which provides that “I. Himmelberger & Company. . . . as far as practicable, agree, contract and undertake to give the said Morley & Morehouse Railroad Company and Houck’s Missouri & Arkansas Railroad Company the preference on all shipments of freight made by them or received by them, from and to Morehouse,” etc. This provision relates solely to shipments by I. Himmelberger & Co. and none other. In connection with the part of the agreement binding I. Himmelber-ger & Co., absolutely, to furnish a prescribed quantity of freight each year during the five-year period it was specially provided that firm might discharge that obligation by furnishing shipments of its own or of companies or corporations in which it held stock or had an interest. No such provision is found in connection with that part of the contract on which the count now under consideration is based. In fact correspondence in the record indicates the refusal of the firm of I. Him-melberger & Company to agree to extend the preference agreement to other shipments than its own. However, ambiguity is the key which unlocks the door to explanatory evidence and the language of this provision of the contract carries none.

III. On the count for damages for breach of the agreement to furnish freight sufficient to produce in earnings at least $5000 per year for five years the trial court held that the five-year period began July 1, 1897, and ended July 1, 1902, and found that the earnings on freight furnished the first year were $2560.46; second year, $5166.34; third year, $4653.87; fourth year, $6235.59; fifth year, $4832.56; a total for the five years of $23,448.82: The court held that the agreement, properly construed, was one to furnish during the five years, sufficient freight to produce $25,000 in earnings during the entire period and that judgment for the deficiency of $1551.18 could not be given since no evidence of the profits which would have accrued was offered.

1. In arriving at the total freight earnings for which credit on the agreement to furnish $5000 per year for five years was given defendants, the trial court allowed some items to which plaintiffs object. (1) It is contended no freight should have been included save on shipments from Morehouse to Cape Gi-rardeau, East Cape Girardeau and Commerce and points beyond. I*t is argued the contract provides that “one-half of the total earnings on said freight so furnished under rates as aforesaid shall amount to not less than twenty-five hundred dollars each and every year for five years;” that the “rates as aforesaid”' are those prescribed by section five of the contract and that since Morehouse is the only point of origin and Cape Girardeau, East Cape Girardeau and Commerce are the only destination points mentioned, “freight so furnished under rates as aforesaid,” is limited to freight originating at Morehouse and destined to one of the three named points or beyond. The argument overlooks paragraph “d” of section five of the contract which established “Rates on the same basis to and-from other points on said railroad, and on other timber and lumber shipped not enumerated.” This last quoted clause rendered the point of origin of shipments immaterial and included shipments destined to any point on plaintiff roads or beyond and the trial court was right in so holding. (2) It is also insisted that shipments of “gum strips” from Morehouse to Commerce made under a special lower rate were not, therefore, made under the contract rates, and freight earnings on these shipments ought not to have been included by the court in its totals. Again plaintiffs have overlooked a contract provision. Section seven specifically provides that lower than contract rates may be given but if given shall not otherwise affect the contract “or any part thereof.” By force of this clause the granting of the lower rate had no other effect than to substitute the new rate for the old, leaving the contract otherwise unaffected. The ruling of the trial court was corrrect.

2. Defendants contend that the five-year period • during which I. Himmelberger & Company agreed to furnish plaintiff roads sufficient freight to produce earnings to the amount of $5000 per year began at the time the road was opened for business and not at the date of the note. Otherwise, it is said, plaintiff roads • might have delayed the completion of their line for an entire year and yet have claimed credit for earnings on the freight I. Himmelberger & Company contracted to furnish during that period. That this last could not be true is .manifest and from that it is argued it must follow that .any delay after July 1, 1897, in opening the road for business, of itself set forward by that much the beginning of the five-year period.

We think the conclusion does not follow from the premise stated. The contract provides that the second party is to ship, for five years from the date of the note, sufficient freight to produce earnings amounting to $5000 each year, and there is nothing in the contract itself to the contrary. The provision in section five of the contract guaranteeing the contract rates for five years after the opening of the road would extend the period during which the contract rates were to be in force beyond July 1, 1902, by a period equal to that between the date of the note and the date of the opening of the road but would not otherwise affect the agreement to furnish a given amount of freight per year for .five years after the date of the note, there being nothing else in the contract indicating an intent to change or qualify the last mentioned agreement. The contract clearly contemplated some delay in opening the road because the $20,000 loaned the railroad company was, as the contract expressly states, loaned for the purpose of purchasing rails, etc., to build the road. The parties knew no road existed when the contract was made and knew that it requires time to build railroads. They know, also, that the date of the note was July 1, 1897, and with all this in mind I. Himmel-berger & Company agreed to furnish each year for a period of five years from the date of the note freight sufficient to produce earnings of $5000 per year. Under these circumstances the five-year period began to run at the date of the note and the railroad company had a reasonable time in which to construct its line. There is neither allegation in the pleadings nor suggestion in the evidence to the effect that more than a reasonable time .elapsed after July 1, 1897, before the road was opened, and we cannot take judicial notice of the time reasonably necessary for the construction of a railroad. In this condition of the record the trial court’s holding that the five-year period began July 1, 1897, the date of the note, must be upheld.

3. By the contract I. Himmelberger & Company bound themselves to furnish freight in such quantities that one-half the total earnings thereon should “amount to not less than twenty-five hundred dollars each and every year for five years” and this obligation could not be satisfied by anything save compliance with its plain terms. The furnishing of no freight the first year and twice the required amount the second, for instance, would not have carried out the agreement. There would have been a material difference ■between the effect on accruing interest of credits of $2500 in each of the years of 1897-1898 and 1898-1899 and a credit of $5000 in the year 1898-1899. The contract does not provide that $25,000 in freight earnings is to be furnished in five years but, in effect, that $5000 must be furnished “each and every year” for five years. The excess furnished in two of the years •in the five-year period cannot be credited on deficiencies in previous years. The provision in section eight to the effect that “it is distinctly agreed that the said ■one-lialf of said total earnings on said freight shall he applied each year, first to the payment of interest on the said $20,000, and the balance to the reduction of the principal” is another which clearly imports that the earning’s of each year of the five years are to be separately considered.

4. The provision that in case of the inability of Hunter or his assigns, from any unavoidable cause, to cause to he furnished for five years $5000 per year in freight earnings, that he or his assigns would at the end of any year accept certain bonds to an amount sufficient, when added to one-half the freight earnings, to total $2500 for that year, could become operative only when a deficiency arose from an unavoidable cause and no evidence of such a situation was offered. Neither did this clause convert this portion of the contract into a mere alternative agreement to furnish freight in the agreed amount or suffer payment to be made in bonds. In view of what is said in a subsequent paragraph as to the deficiency in • the year. 1899-1900 it may be observed now that if this clause could be construed to include as an “unavoidable cause,” the inability of the railroad to furnish cars, yet no tender of bonds was made at the end of the year mentioned or other time.

5. Under the findings of the trial court and the ■evidence the earnings on the freight furnished during the year beginning July 1, 1897, and ending July 1, 1898, amounted to $2560.46 and under the contract the deficiency for that year amounted to $2439.54. Plaintiffs contend the trial court erred in refusing to credit the note with the amount of this deficiency.

The note expressly refers to the contract for the manner of payment and the contract includes the agreement that at least $2500 is to be paid out of one-half the earnings on freight furnished during the year 1897-1898. The principle relied upon by plaintiffs is that announced in Knettle v. Scott, 18 Mo. App. 412; Wilt v. Ogden, 13 Johns. 56; Nipp v. Diskey, 81 Ind. 214; McClellan v. Coffin, 93 Ind. 456; Bettle v. Bank, 3 N. Y. 88; Smith v. Corn, 3 Head, 116; Webb & Webb v. Vermillion, 13 Ky. Law Rep. 367. These were cases in which either the' payor had an option to pay in services and was prevented by the payee from exercising it, or the contract, in wh-ole or in part, was to be discharged solely by certain services agreed to be rendered. The agreement in this case falls within neither of the classes mentioned. Here the contract is to pay money. That a portion of the money is to be derived from freight to be furnished does not convert the agreement into one to pay in transportation.

The note, however, refers to the contemporaneous contract and expressly provides it “is to be paid as in said contract specified and not otherwise.”

Section eight of the contract, when construed with the concurrent supplemental agreement, obligates I. Iiimmelberger & Company to furnish freight the earnings on which will amount to at least $5000 per year and provides for the payment of the note out of such earnings to the extent of one-half thereof each year for five years. The contract therefore provides for a fund out of which a certain part of the note is to be paid and the note expressly provides it “is to be paid as in said contract specified and not olhertvise.” A promise to pay out of a particular fund and not otherwise is contingent and unenforceable except in accordance' with its terms (Story on Promissory Notes. [7 Ed.], sec. 25; Daniels on Negotiable Instruments,, sec. 50) and defendants having breached their covenant to provide the means for accumulating the fund out'of which it was agreed payment to a prescribed extent should be made or not made at all have no reason to complain of the application of the rule in this, case. The suggestion that the agreement was merely one to furnish employment ont of the profits of which payment might have been made and its breach gave rise to an action for damages only and not to a right to a credit on the note is not sound as to one-half the deficiency. The language of the note and contract refutes it..

The agreement as to payment from the earnings related, however, to but one-half of them and to that extent only can the credit be allowed. There was no obligation to pay over more than one-half the earnings and payment from the particular fund was to be made to the extent of but one-half of them. One-half such earnings constituted the fund designated. As to the other half the breach by I. Himmeiberger & Company of their agreement might have entitled plaintiffs to damages to the extent of probable profits but no evidence having been given of what profits would have accrued recovery therefor was properly denied. So far as concerns the deficiency in freight furnished between July 1, 1899, and July 1, 1900, the evidence, we think, shows it to have been due to the failure of plaintiff roads to furnish cars and no credit can be allowed on that account. Nor can any credit be allowed on account of the deficiency in the last of the five years, the contract rates having been abrogated a few days before the end of that year.

6. Defendants contend plaintiffs have sold the road and with it their cause of action, if any, on the contract, and consequently are not entitled to the credit claimed by reason of the deficiency in freights furnished the first year. In the view we have taken the question whether plaintiffs ’ causes of action on the contract passed by the deed to the St. Louis. & Gulf Bailro'ad Company is no longer in the case. No recovery of damages was permitted below and what has been said results in an affirmance of the judgment to that extent. There could be no claim that plaintiffs’ liability to pay any balance due on the note was increased or diminished by tbe execution of tbe deed mentioned. After tbe elimination of tbe claims for damages for breaches of tbe contract tbis became, in effect, a suit against plaintiffs on tbe note. Certainly tbe deed to tbe St. Louis & Gulf, whatever its effect as to rights of action for breaches of tbe contract, could not erase a credit from tbe note, and bow can it be any more successfully asserted that it could destroy a credit, though unendorsed, which plaintiffs under tbe law were entitled to have endorsed on tbe note? Tbe deed mentioned in no wise affected tbe rights of plaintiffs to tbe credit for one-half tbe deficiency in freight earnings for tbe first year.

IY. So far as concerns tbe claim for credits for tbe amount of tbe earnings on freight now asserted to have been shipped as “prepaid” by tbe Him-melberger-Luce Land & Lumber Company under an agreement that one-half should be applied on tbe note and one-half remitted to tbe railroad company, it is ■only necessary to say that neither tbe petition nor reply raises any such issue in tbis case. Tbe right of plaintiffs and tbe company mentioned to alter tbe contract between plaintiffs and I. Himmelberger & Company without tbe latter’s consent might well be questioned but need not be discussed since tbe issue was not made. Had tbe issue been made and tbe matters tried below it might have appeared and in fact tbe récord indicates it would have appeared tbe sums arising from such payments were diverted, with plaintiffs ’ assent, to tbe payment of other debts owing to tbe Lumber Company.

Y. Other questions are suggested in the briefs, but in view of what has been said are no longer of importance. Tbe judgment rendered was for tbe sum of $7144.90. In arriving at tbis amount tbe court failed to include a credit for one-half tbe difference between $5000 and the earnings on freight furnished between July 1, 1897, and July 1, 1898. Allowing credit for this amount ($1219.77) as of July 1, 1898, judgment should have been rendered for $4893.97, and the judgment entered was excessive to the extent of the difference. The judgment will be affirmed on condition that a remittitur of $2250.93 is entered as of the date of the judgment in the trial court, otherwise the judgment will be reversed and the cause remanded. Brown, G., concurs.

PEE CUEIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court. All the judges concur.


text:
    MARY CASSIDY v. CITY OF ST. JOSEPH, Appellant.
    Division One,
    December 24, 1912.
    1. APPEAL: Jurisdiction: Affidavit. The order of the circuit court granting an appeal does not confer jurisdiction upon an appellate court unless there is a sufficient affidavit to support the appeal.
    2. -: -: -: Omission of Words: Clerical Error. While the word “vexation” was deliberately inserted by the Legislature in the statute governing affidavits for appeal, which provides that no appeal shall be allowed unless the appellant shali file his affidavit stating that the appeal is not made for vexation or delay, yet it is held- that the omission from the affidavit in this case of the words “vexation or” is a clerical error, and the respondent will not be heard to question the affidavit after delaying two and one-half years and allowing considerable labor to be performed and expense incurred in preparing for a hearing on the merits.
    S. CITIES: Negligence: Exercise of Discretionary Powers. Plaintiff’s husband was employed by the board of health of defendant city and engaged in cleaning the streets. A team hitched to a wagon into which deceased’s co-laborers were shoveling refuse, was frightened and ran while the driver was standing at the back oí the wagon. The team struck and killed deceased. Held, that the plaintiff cannot recover for her husband’s death, a municipal corporation not being liable in damages for negligence in the exercise of its discretionary powers of a public or legislative character.
    Appeal from Buchanan Circuit Court. — Row. G. A. Mosman, Judge.
    Revebseo.
    IF. B. Norris, O. E. Shultz, and Phil A. Slattery for appellant.
    (1) Respondents cannot avail themselves of a motion to dismiss the appeal because of a defective affidavit (a), for the reason that the case has been argued and briefed and submitted upon its merits. Bridge and Const. Co. v. Railroad, 72 Mo. 664. (b) Because no complaint that the affidavit was defective was made to the trial court at the time the order granting the appeal was made. The complaint was made by respondents for the first time in the appellate court after the trial court had granted the appeal, thereby preventing appellant from filing an amended affidavit. State ex rel. v. Broaddus, 210’ Mo. 16; DeBoll v. Railroad, 123 Mo. 501. (2) Respondents contend that the affidavit of appeal is defective, because it .recites that the appeal is not taken for delay, but because affiant believes said defendant' is injured and aggrieved by the judgment of the court. They insist that the affidavit should have said that the appeal is not taken for vexation or delay. We submit to the court that the terms “vexation” or “delay” as used in the statute are convertible and that “delay” as used in the statute means vexatious delay. We further submit that since the affidavit recites that the appeal was not taken for delay, but because affiant is injured and aggrieved by the judgment of the court, that having thus stated specifically the reason for taking the appeal it followed that the question of vexation was thereby excluded. Burdock v. Post, 12 Bar,b. (N. Y.) 168; Armstrong v. Ames & Frost Co., 17 Tex. Civ. App. 46; Railroad v. Salt Co., 63 S. W. 1025. (3) The courts hold that the affidavit of appeal need not literally follow the language of the statute, but that a substantial compliance with the statute is sufficient. The omission of the term “vexation” is a mere clerical error, and the affidavit is a substantial compliance with the statute. State ex rel. v. Broaddus, 210 .Mo. 1; Yost v. Silvers, 138 Mo. App. 524. (4) Defendant’s demurrer should have been sustained for the following reasons: (a) Under the petition and the evidence, plaintiff cannot recover. The city is not liable for the violation of an ordinance. Ryan v. Kansas City, 232 Mo. 471. (b) If deceased was injured by reason of the team being left unfastened, such failure was the act of a fellow-servant, for which the city cannot be liable. Hawk v. .Lumber Co., 166 Mo. 121; Fogarty v. Transfer Co., 180 Mo. 490; Marshall v. Schricker, 63 Mo. 308; Berquist v. Minneapolis, 44 N. W. 530; O’Kee v. Brownell, 30 N. E. 479; McDermott v. Boston, 133 Mass. 349. (c) If the injury was caused by an act of negligence it was the negligence of Fry in failing to fasten his team, or in failing to properly guard them. Fry was not an employee of the city, but was employed by Henley. The city had no control of Fry in the handling and management of his team, and the city had no power to discharge him. Fink v. Furnace Co., 82 Mo. 276; DeForest v. Wright, 2 Mich. 368.

      James W. Boyd and J. B. O’Connor for respondent.
    (1) The affidavit for appeal does not pretend to state or allege that the appeal was not taken for vexation or delay. It simply says that the appeal is not made or'taken for delay, thereby tacitly admitting that his appeal was taken for vexation. All the decisions hold that it is necessary for a party to comply with'the statute before he is entitled to an appeal. (2) The law and the evidence in the case made it the duty of the circuit court to overrule the defendant’s demurrer. The first reason assigned by the appellant as to why its demurrer should have been sustained,, is stated in the following languagge: “Under the petition and the evidence, plaintiff cannot recover. The city is not liable for the violation of the ordinance.”' It is the respondent’s contention that the violation of this ordinance constitutes negligence on the part of the city, but respondent further contends that if the city was not bound to obey this ordinance, still the city was bound to use in the business in which it was engaged, when Cassidy was killed, proper and reasonable care and caution, and its failure to do so, of course, would be negligence. The suit is not based on the violation of the ordinance, but is based upon the carelessness and negligence of the appellant.
   BROWN, C.

This is an appeal from the order of the trial court sustaining a motion for a new trial after verdict for the defendant, on the ground of improper language used by defendant’s attorney in his argument to the jury.

The affidavit for appeal omits the words “vexation or” from the form'prescribed by the statute. The respondent has moved to dismiss the appeal for the reason of this omission, and the motion has been reserved for decision with the case. The transcript was filed in this court April 17, 1908. The appellant filed its abstract of the record and brief on December 29, 1911. Respondent filed her motion to dismiss the appeal October 11, 1911, and her brief upon the merits on the fourteenth of the same month. The suit is for $10,000 on account of the killing of one James J. Cas-.sidy, the respondent’s intestate, by a runaway team in the employment of the city, under circumstances stated in the petition as follows:

“That by the provision of said chapter 32 and said section thereof, it was at all times herein stated unlawful for any person to leave any animal standing in any- street, avenue, alley, public place in the city ■of St. Joseph, without being fastened or so guarded ns to prevent its running away. That on or about the 17th day of June, 1907, at and near Savannah avenue .and Jefferson street, where they intersect in the said city, defendant had said 'Welch and a number of laborers and men and teams and wagons under his •charge and conirol and supervision engaged in the work of cleaning the streets. That at said time, said Welch, as agent, foreman and representative of the ■defendant, was in charge of the said men, laborers, teams and wagons j then and there in the employ of, .and working for the city aforesaid. That at said time, there were at least two wagons and teams in the use of •said city and used at said time and place by said Welch and said men and laborers under his control. That the •deceased, James J. Cassidy, was then and there in the employment of the city and working for it as a laborer in its said business of cleaning said streets and he was then and there with the other laborers, under the control of and subject to the orders and directions of the said Stephen Welch.- That at said time, to-wit, June 17, 1907, the defendant at said place by and through its said superintendent and foreman, Stephen Welch, carelessly and negligently left one of the said teams standing in Savannah avenue, a public street in said city, unfastened and unguarded without being fastened ■or guarded or hitched in any manner whatsoever, in violation of the ordinance above mentioned, then and in consequence of the carelessness and negligence of the defendant in having and leaving said team attached to said wagon unfastened and without being fastened and unguarded and without being guarded and unhitched and hitched in no manner, whatever, and in-consequence of the defendant’s violation of said ordinance and its failure to comply with its requirements or any of them, the said team became frightened and ran away and with great force and violence ran against said deceased near the intersection of said streets, thereby inflicting upon him serious and fatal wounds and injuries, of which he died, within three days thereafter.”

The testimony showed that at the time of the accident the deceased was driving a team employed by the board of public works' of the city of St. Joseph in cleaning the streets of that city. That at the time and place of the accident three such teams and a number of men, including "Welch, who acted as a straw boss as well as a sweeper, were employed in sweeping the dirt from the surface of the street into little piles near the gutter from which it was taken up with shovels, loaded into the wagons and taken to the city dump. Each of these wagons was accompanied by two men, one of whom acted as driver-as well.as shoveler, and the other was a shoveler. The horses were gentle, and as they passed along the street they would be stopped by the driver, sometimes after passing one of these piles of dirt four o.r five feet. As the piles were about that distance apart there would be two or three of them in reach of the wagon at the same time. The horses seem to have been driven by oral direction of the driver, stopping and starting at his call. As they were engaged in this work, all the three teams being within the limits of a three hundred foot block, an automobile passed one of them which it frightened with its horn so that it started instantly to run. It is claimed that the driver 'of this team was at the time engaged in shoveling one of the piles into the rear of his wagon. The deceased, who was engaged in the same employment, seemed to fear that his team would be struck or frightened by the runaways, and started towards them, when they ran ag'ainst him, knocking him down and injuring him so that he died within a few hours.

Should it he necessary, further details will he mentioned in the course of the opinion.

I. It is now the settled doctrine of this court that the order of the circuit court granting an appeal, whatever may he its recitals, does not confer jurisdiction upon the appellate court in the absence of a sufficient affidavit to support such appeal. It is evident that to fill this requirement the affidavit must state, in substance, all that the statute requires, or must show on its face such an attempt to comply in good faith with all the statutory requirements as will impose upon the respondent the burden of making known his objections in time to prevent unnecessary loss and expense should it be held insufficient. This duty of making timely complaint exists in all such cases in which amendments are permissible; for a party should be permitted as against himself to waive the performance of that to which his adversary may be entitled as a matter of course.

The statute provides that no appeal shall be allowed “unless . . . the appellant or his agent shall, during the same term, file in the court his affidavit, stating that such appeal is not made for vexation or delay, but because the affiant believes that the appellant is aggrieved by the judgment or decision of the court.” [R. S. 1909, sec. 2040.] The appellant contends that the omission of the word “vexation” does not take anything away from the meaning of the statutory form and is therefore a substantial compliance with it. "We do not agree with this position but think that the word was deliberately inserted, on.account of its peculiar meaning not - expressed by any other word or combination in the sentence. . Tt is within the knowledge of every lawyer of experience in bis profession, that parties have sometimes come to tbe courts with litigation with respect to which they have not hesitated to say that they would take good care that judgments against them should not be profitable in the gaining. While it is to the credit of our jurisprudence that this is becoming more rare, it serves to illustrate the difference in meaning between “vexation” as applied to our appellate litigation, and that “delay” which puts off the day of payment of a just liability by the same means.

Similar reasoning would apply should we undertake to substitute any other words contained.in the statutory affidavit for that omitted. It has a signification of its own which the Legislature had the right to take into consideration, and we have little sympathy for judicial construction which substitutes the judgment of the courts for the judgment of the Legislature.

Although we do hot consider the omission from the affidavit a mere error of form and not of substance, it carries upon its face evidence that it is a mistake in writing the very thing the statute requires to be written. It belongs to a class so usual that our first impression upon inspecting it is that it is the accidental omission of something the scrivener intended to write, and it would require evidence to convince us that it was his deliberate, intentional act. Such errórs are called “clerical errors,’’ because the difficulty is supposed to lie in the writing, and not in the intention. They are defined by both Burrill and Black, in their respective law dictionaries as “a mistake in copying or writing” and this definition has been generally adopted by the courts. It is well illustrated by the New York Court of Appeals in People ex rel. v. Wilson, 119 N. Y. 515, 518, where it is said: “Upon the admitted fact that the relator’s property was inserted in the list by mistake, the error must, we think, be regarded as clerical. The admission that the nlain-tiff’s lot was put in by mistake, naturally excludes any idea that it was inserted in the exercise of any judgment or discretion, or in pursuance of any determination that the lot was included within the district of assessment. It does not import that the hoard acted upon any misconception of the law, or of their duty, hut that hy mere inattention, or rather without any 'intention, in some way in making up the list the relator’s lot was inserted. This construction is certainly justified in the absence of all explanation on the part of the defendants.” In Marsh v. Nichols, 128 U. S. 605, the omission of the Secretary of the Interior to sign letters patent was a clerical error. In Bell v. Hearne, 19 Howard, 252, 262, a land patent intended for John Bell was, by error, issued and delivered to James Bell. This also was held to be a clerical error. These are generally amendable, and the one now in question belongs to the class in which the courts will give effect to the intention unless timely objection is made. In this case the respondent waited more than two and a half years and until considerable labor had been performed and expense incurred in preparing for a hearing upon the merits, and will not now ha heard to question the affidavit.

II. The appellant in his brief says that “this appeal is taken on the theory that the case ought not to have been submitted under any conditions to the jury, and therefore the granting of a new trial by the lower court was error, and the verdict of the jury was for the right party on the whole record.” Having decided that we have obtained by the appeal the jurisdiction to' do so, it remains to consider that question' only.

Neither the State nor those quasi-corporations consisting of political subdivisions which, like counties and townships, are formed for the sole purpose of exercising purely governmental powers, are, in the absence of some express statute to that effect, liable in an action for damages either for the non-exercise of such powers, or for their improper exercise, by those charged with their execution. This applies alike to the acts of all persons exercising these governmental functions, whether they he public officers whose duties are directly imposed by statute, or employees whose duties are imposed by officers and agents having gen--eral authority to do so. The same rule applies to municipal corporations in the exercise of similar powers, which are called discretionary powers of a public or legislative character (4 Dillon, Mun. Cor. [5 Ed.], sec. 2026), because they primarily rest in the discretion of the legislative authority of the municipal government, although their execution, like the execution of the general powers of the State government, may be intrusted to such officers and other agencies as the legislative authority may lawfully designate. When the exercise of these powers ceases to be discretionary ; when it no longer depends upon the will of the municipal legislature, but upon the paramount will of the charter-making body, then only does the neglect of the municipality subject it to an action for damages. This general principle is illustrated in the establishment and improvement of streets, which is not a matter of municipal concern only, but concerns the welfare and safety of the entire people. The municipality is intrusted with their establishment and improvement for the benefit of all who may travel upon them. Their location is purely discretionary, and no private action will lie either for a failure to locate a street or for its mislocation. But in the very nature of things the absolute duty rests upon the municipality to use reasonable care in its improvement and maintenance, so that the people of the whole State as well as the strangers within their gates may travel upon it in reasonable safety. It assumes this duty by the acceptance of its charter and the general policy of the law to which, it owes its existence, and is liable in damages to any one injured by its neglect or abuse. It also assumes the dnty, where the act of its creation so provides, to furnish police protection to the inhabitants, to take measures to protect their health, and to insure general cleanliness and decency. These matters are, however, in their very nature, discretionary. The municipality must necessarily pass judgment upon the best method of accomplishing these results and when it has done so, it is within its discretion to enforce such regulations as it has made or not as it pleases. The execution or non-execution of its ordinances lies in its own hand. The same result follows with respect to the agencies it shall choose, whether they he men or things. The patrol wagon and its driver, the city ambulance with its driver, the street sweepers with the vehicles and employees that gather the dirt, are all agencies of the government with respect to these matters as well as are the mayor and council who provide the rules that set them in motion. The rule respondeat superior does not apply as between them and the .municipality, nor is the city under obligation to account to any private individual for the manner in which these discretionary duties are performed. Each actor in the drama of 'government is responsible only for his own conduct.

These principles are almost universally recognized by the courts, which, however, have not always applied them with that uniformity of construction necessary to the preservation of the symmetry and certainty desirable in the laws to which our conformity is enforced. This court has approved the principle as we have stated it in Ulrich v. St. Louis, 112 Mo. 138, which cannot be distinguished in principle from the case before us. A prisoner in the city workhouse was .required to hitch to a vehicle a pair of mules which the city knew to be of a vicious and dangerous disposition, wholly unfit for use and unmanageable, so that it was dangerous to approach, or handle them. The plaintiff was violently lacked by one of them and seriously injured. This court, adopting in that respect the opinion of the St. Louis Court of Appeals in the same case, said: “The rule of law is well settled in this State that a municipal corporation is not answerable in damages for the negligent acts of its officers in the execution of such powers as are conferred on the corporation or its officers for the public good. [Murtaugh v. City, 44 Mo. 479; Hannon v. St. Louis Co., 62 Mo. 313; Armstrong v. City, 79 Mo. 319; Kiley v. City, 87 Mo. 103; Carrington v. City, 89 Mo. 208; Keating v. City, 84 Mo. 415; 2 Dillon on Municipal Corporations (4 Ed.), sec. 965a.]’.’ It was held that the city was not liable. That case is interesting not only for its correct statement of the law controlling this, but also for the citation of authorities with which it is supported. The same rule was adopted and enforced in Love v. The City of Atlanta, 95 Ga. 129, which was for damages sustained on account of the running away of an animal attached to one of the garbage carts of the city; and in Johnson v. Somerville, 195 Mass. 370; Haley v. Boston, 191 Mass. 291; Hayes v. Oshkosh, 33 Wis. 314; Kuehn v. Milwaukee, 92 Wis. 263; Condict v. Jersey City, 46 N. J. L. 157. These cases, most of which bear a striking similarity to the one we are considering, open to us, by their citations, a field of learning on this subject which may be harvested with profit at our leisure.

In Young v. Railroad and Kansas City, 126 Mo. App. 1, the Kansas City Court of Appeals seems to have taken a different view of the same question, but placed its decision to some extent on the theory that in the city cleaning work there is a difference with respect to the liability of the city for negligence, between the operation of sweeping dirt into, piles and shoveling of the same piles into a wagon to be taken to the city dump. On this question the court said: “It was the duty of the city to clear the streets not only for proper appearances hut so as to keep them free and safe for travel; and there can he no doubt hut that if it had left piles of dirt unguarded, and someone passing, while exercising care, was injured in person or property hy reason of the obstruction the city would he liable.” "We think this distinction is too narrow and technical to constitute a reliable rule of action, even if the assumption which it involves, that when one of the objects of the work is to keep the street in safe condition for travel the same municipal liability results from the negligence of the officers and servants of the city who do it as would result from leaving it undone, is correct. This, however, we do not feel called upon to decide. The case, in so far as it may conflict with this opinion, is disapproved.

The order of the circuit court granting a new trial is accordingly reversed.

PER CURIAM.

The foregoing opinion of BeowN, C., is adopted as the opinion of the court-. All the judges concur.


author: BECWN, P. J.

text:
    DAN DANCIGER et al. v. AMERICAN EXPRESS COMPANY, Appellant.
    Division Two,
    December 31, 1912.
    1. APPELLATE JURISDICTION: Constitutional Question. Although. plaintiffs’ reply raised the question of the constitutionality of a statute of another State which .defendant in its answer claims inhibited it from the performance of its contractual duty, yet if the statute does not directly infringe upon any right of plaintiffs, an appeal from a judgment against defendant, based on that ground alone, is not to the Supreme Court.
    2. -:-: By Whom Raised. A litigant cannot attach the constitutionality of a statute which does not directly invade his rights. Plaintiff distillers sued an express company for the alleged conversion of $1670.40 worth of intoxicating liquors delivered to it to be transported to various points in Mississippi and there delivered to consignees upon the payment of the purchase price. Defendant, for failure to perform the contract, pleaded that, after the receipt of said liquors from plaintiffs, Mississippi enacted a law requiring all express companies delivering intoxicating liquors in that State to take out a license and pay a privilege tax of $5000 for each office where such liquors are so delivered,, and that to comply with that law and to deliver the liquors according to its contract it would have to take out such license at 252 offices at a cost of $1,260,000 in taxes, and asked to return the liquors to plaintiffs and be released from its contract. For reply plaintiffs asserted said law is invalid and conflicts with the interstate commerce clause of the U. S. Constitution, and thereforetno excuse to defendant for the non-performance of its contract. The court held the law invalid and rendered judgment for plaintiff. Held, that the law levies a privilege tax only on express companies, and not upon liquor dealers, and does not directly infringe upon any right of the plaintiffs, and consequently they are not in a position to attack its constitutionality, and the Supreme Court does not have appellate jurisdiction over defendant’s appeal.
    Appeal from Jackson Circuit Court. — Hon. Hermann Br-umback, Judge.
    TRANSFERRED TO KANSAS ClTY CoUBT OF APPEALS.

      Ashley & Gilbert for appellant.
    I. J. Ringolsky for respondents.
   BECWN, P. J.

Action for conversion. Prom a judgment for plaintiffs in the circuit court of Jackson county, defendant, appeals.

Plaintiffs sue defendant for the alleged conversion of $1670.40 worth of intoxicating liquors delivered to defendant at Kansas City, Missouri, under a contract to transport said, liquors to sundry places in the State of Mississippi and there deliver same to consignees upon the payment of the purchase price.

The defendant failed to deliver the liquors, as per contract; and as a defense for nonperformance, alleges that after the receipt by defendant of said liquors, the Legislature of Mississippi enacted a law requiring’ all express companies delivering intoxicating liquors in that State to take out a license and pay .a privilege tax of $5000 for each office where such liquors are so delivered. That defendant could not deliver said liquors to the various consignees thereof without first paying a privilege tax on 252 offices in said state, aggregating a total tax of $1,260,000. Defendant therefore asks to be released from its con-. tract, by returning said liquors to plaintiffs.

For their reply, plaintiffs assert that the aforesaid law of Mississippi is invalid, and is therefore no excuse for nonperformance by defendant; and as grounds for this contention, allege:

That said law conflicts with paragraph 3, section 8, article 1; of the Constitution of the United States, which reads as follows: “Congress shall have power ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”

The trial court gave a declaration of law sustaining the contention of plaintiff that the Mississippi law imposing a “privilege tax” on express companies is unconstitutional, and rendered a judgment for plaintiffs.

There are -other issues in the case; but the foregoing is all that is necessary for us to consider in determining whether or not this court has jurisdiction to hear and determine defendant’s appeal.

Was a constitutional question raised below in such manner as to confer jurisdiction of the appeal on this court?

The above mentioned statute of the State of Mississippi levies a “privilege tax” only on express companies — not upon liquor dealers. It is apparent that it does not directly infringe upon any right of the plaintiffs. Consequently, they are not in a position in this action to attack its constitutionality.

The doctrine that a litigant cannot attack the constitutionality of a statute which does not directly invade his rights, is sustained by the cases of Cunningham v. Current River Railroad, 165 Mo. 270; Ex parte Lucas, 160 Mo. 218; State ex rel. Crandall v. McIntosh, 205 Mo. 589; Ordelheide v. Modern Brotherhood of America, 226 Mo. 203.

In the last named case, the inability of litigants . to assail the constitutionality of a law which does not purport to affect their rights is considered in such an exhaustive, manner as to render a further citation of authorities useless.

There was no constitutional question properly presented to the trial court, and having no jurisdiction of the appeal on any ground, the cause should he transferred to the Kansas City Court of Appeals. It is so ordered.

Ferriss and Kennxsh, JJ., concur.