source: Caselaw Access Project

author: BROWN, C. PER CURIAM:

license: Public Domain

text:
    JAMES LONGWORTH v. WILLIAM K. KAVANAUGH, Appellant.
    In Banc,
    March 5, 1921.
    1. VEBDICT: Evidence. The evidence is examined and held to support a verdict for plaintiff upon the oral contract alleged in his petition.
    2. -: Amount. The evidence is examined and held to support a verdict for plaintiff for the amount found by the jury.
    3. CONTRACT: Promoters: Public Policy. Defendant and his associates desired to secure from the County Court of St. Louis County a franchise to build, maintain and operate a railway through the county and across its highways. For this purpose defendant agreed with plaintiff that he should have a certain interest in whatever rights, property or interests defendant and his associates should thereafter acquire, plaintiff to assist in securing such franchise. Certain other individuals also desired to secure such a franchise and filed application therefor with the county court. Thereafter it was agreed between the two sets of parties "seeking such franchise that they should unite and form a corporation to obtain the franchise, and of this agreement the members of the county court were fully informed. By this time . there were four applicants for the franchise, which finally was granted to the above corporation, the plaintiff in the discharge of his duties to defendant and pursuant to his agreement attending the meetings of the county court during several months and keeping defendant informed of the proceedings thereof. Held, the contract was not void as being contrary to public policy.
    4. -: -: Action at Law. Plaintiff and defendant agreed that plaintiff should assist defendant and his associates to procure a franchise from the county court to build, maintain and operate a railway through the county and across its highways, and for his services plaintiff should receive one-sixteenth of 286 Mo. — 35 whátever finanoial gain might come of the enterprise. The franchise was finally granted to a corporation, and defendant and his associates secured the control of the capital stock of such corporation. Thereafter defendant and his associates organized another corporation, to which said franchise was transferred, and defendant and his associates received 800 shares of the latter’s preferred stock, which was afterward transferred for $160,000 to another corporation, and in addition thereto such last corporation paid defendant $50,000 for his services in securing such franchise and also paid all the debts and liabilities of the corporations whose stock was transferred to it. Held, that plaintiff could maintain an action at law to recover his one-sixteenth interest in such total proceeds amounting to $210,000.
    5. INSTRUCTIONS: Correct Theory. Instructions which predicate plaintiff’s right to recover upon correct principles as applied to the facts shown by the evidence and hypothesized in the instructions are not erroneous.
    6. VERDICT: Amendment of: Timely Objection. ' Objections to the trial court’s action in having the verdict of the jury as returned into court amended by the jury, or its foreman in its. presence, must be made at the time of such action, and come too late if first made in the motion for a new trial.
    Appeal from St. Louis City Circuit Court. — Son. William T. Jones, Judge.
    Affirmed.

      A. & J. F. Lee and James A. WaecMer for appellant.
    (1) Tbe court erred in refusing to give defendant’s instruction for nonsuit offered at the close of plaintiff’s case, and the instruction offered at the close of the entire case, because the testimony, so far as it tended to establish any contract, tended: (a) To establish a contract that was' void and unenforceable in law, a purely lobbying contract, against public policy and sound morals. Porter v. Jones, 52 Mo. 399; Nash v. Kerr-Murray Mfg. Co., 19 Mo. App. 1; Ridenbaugh v. Young, 145 Mo. 280; Tool Company v. Norris, 69 U. S. 45; Marshall v. Railroad Co., 16 Howard, 314; Gill v. Withorne & Davis, 12 La. Ann. 219; Harris v. Roof’s Exr., 10 Bart. 489; Pease v. Walsh, 49 Abb. Pr. 269; Critchfield v. Asphalt Co., 174 Ill 466; Harris v. Simonson, 28 Hun, 318; Hovey v. Storer, 63 Me. 486; Oscanyan v. Winchester Co., 103 U. S. 261; Newman v. Davenport, 9 Baxt. 538. (b) The alleged contract was void as suppressing’ competition. Hyer v. Traction Co., 80 Fed. 839; Engleman v. Skrainka, 14 Mo. App. 438; Durfee v. Moran, 57 Mo. 379; Wooten v. Hinkle, 20 Mo. 290; Hook v. Turner, 22 Mo. 333; Lawnon v. Bradley, 13 Mo. App. 361; In re Salmon, 145 Fed. 649; Pinch v. Granite Co., 187 Mo. 244. (2) The court erred in giving to the jury -plaintiff’s Instruction No. 1, because as applied to the testimony and evidence in this case, it was erroneous, misleading and confusing. (2) Plaintiff’s Instruction No 2 is erroneous. (3) The court erred in directing or in permitting the foreman of the jury to change the verdict as rendered by the jury when first handed into court, and, thereafter, when a second time handed into court; so that the verdict accepted by the coui’t is the verdict of the court or of the court and the foreman of the jury, and not the verdict of the jury.

      Robert E. Collins and Edward D’Arcy for respondent.
    (1) The trial court committed no error in overruling defendant’s instruction for a nonsuit offered at the close of plaintiff’s case and the instruction offered at the close of the entire case. While there was evidence offered by both sides, the jury having found in favor of the plaintiff, particularly on the second trail of the case, and the trial court having overruled the defendant’s motion for a new trial, the sufficiency of the evidence will not be considered by this court. (2) The contract between the plaintiff and the defendant was not a lobbying contract or against public policy or sound morals.- Hyer v. Traction Co., 168 U. S. 82; 9 Cyc. 492, note 82; Smith v. Greenlee, 2 Dev. (N. C.) 126; Piatt v. Oliver, 44 U. S. 411; Kelerlier v. Henderson, 203 Mo. 498. (3) The defense that the contract sued on is ag'ainst public policy is a special defense which must be pleaded and cannot be shown under a general denial. Musser v. Adler, 86 Mo. 445; Moore v. Ringo, 82 Mo. 473; Keler-her v. Henderson, 203 Mo. 498. (4) The appellant is estopped to assert the invalidity of an-agreement, between himself and' the syndicate interested in the St. Louis Belt & Terminal Railway Company to combine their efforts to procure a franchise. Vette v. Geist, 155 Mo. 27; Kelerher v. Henderson, 203 Mo. 498. (5) The verdict as filed was the. verdict of the jury.
   BROWN, C.

This suit was instituted in the Circuit Court for the City of St. Louis on March 15, 1905, and has been once before in this court (190 S. W. 31.5). It was tried to a jury in said circuit court at the April term, .1907, resulting in a verdict for the plaintiff in the sum of eleven thousand two hundred ninety-three dollars and thirty-three cents, which was set aside on motion on the ground that it was against the weight of the evidence. An amended petition was afterward filed and stricken out for variance. Plaintiff declined t( plead further and appealed to this court from the finai judgment rendered against him, which we reversed, and remanded the cause. Another trial was begun on March 32,1917, resulting in a verdict and judgment for plaintiff in the sum of $11,671.91, from which this appeal is prosecuted. After the verdict and before final judgment, the plaintiff, by leave of court filed his fifth amended petition as provided in Section 1849, Revised Statutes 1909.

Tins petition omitting introduction and formal conclusion is of the following tenor:

“That during the month of May, 1899, the plaintiff and defendant, William K. Kavanaugh and John B. Clayton, L. R. Wilfley, W. M. Mitchell, James Y. Lockwood and other persons whose names are unknown to plaintiff, said unknown persons being represented by tlie defendant and cannot therefore be stated, associated themselves together, for the purpose of building, constructing, maintaining and operating a single or double track railway in and through the County of St. Louis in the State of Missouri, and for the purposes of such railway of obtaining from the County of St. Louis in said State, a grant, franchise or right to build, construct, maintain and operate such railway; that it was orally agreed by and between the plantiff and the defendant William K. Kavanaugh that the plaintiff should own and have a one-sixteenth interest or part in whatever rights, property or interests said association should thereafter acquire.
“That it was thereafter determined and agreed between defendant and his said associates that instead of endeavoring to secure a franchise from the County of St. Louis to themselves directly, said enterprise should be carried out by assisting another corporation known as the Central Belt Railway Company, a corporation organized under the laws of the State of Missouri and by its charter authorized to build, construct, maintain and operate .a single or double track railway in and through the County of St. Louis and State of Missouri, to secure said franchise, and by making an arrangement with the parties interested in said company for securing to defendant and his associates the control of said Central Belt Railway Company and said franchise and rights.
“That plaintiff, defendant and their associates did work together ’ with the parties interested in said Central Belt Railway Company, to secure said franchise in the name of said Central Belt Railway Company, and the fact that said two interests were working together was well known and understood by said County Court of St. Louis County, and said County Court desired said co-operation between said two interests, in order that there might be sufficient financial backing behind said Central Belt Railway Company, to justify the granting of a franchise to it.
“That on, to-wit, October 4-, 3899, said County Court of St. Louis County granted said franchise to the said Central Belt Railway Company for a belt line railway as above set out.
“That as a result of the plan above set out, the stockholders of said Central Belt Railway Company did on or about October 18, 3899, enter into a contract with defendant, in which it was agreed that the stock of said Central Belt Railway Company should he transferred to defendant, that defendant should reorganize and finance the enterprise of constructing said belt railroad, and that defendant and his associates should own thirteen-sixteenths of said reorganized company, and said Central Belt stockholders should own three-sixteenths thereof.
“That pursuant to said contract, the stock of said Central Belt Railway Company was, on or about said October 18, 1899, duly transferred and delivered to defendant and his associates, practically the whole thereof being transferred to and issued in the name of William K. ICavanaugh, trustee.
“That on or about March 8, 1900, defendant and those associated with him acquired by purchase from said original stockholders of said Central Belt Railway Company, whatever right, title and interest they still retained in the stock of said company.
“That thereafter and in about the month of March, 1902, defendant and his associates, the then owners of the entire capital stock of the Central Belt Railway Company, caused another corporation to be organized under the laws of the State of Missouri, known as the St. Louis Belt & Terminal Railway Company, which was authorized under its charter to build, construct, maintain and operate a railway in and through the County of St. Louis, Missouri.
“That on or about the 31st day of May, 1902, said association or syndicate, composed of defendant and his associates, caused said Central Belt Railway Company, without consideration moving to it, to assign, transfer and convey to said St. Louis Belt & Terminal Railway Company the said grant, right and franchise .given to it as aforesaid by said St. Louis County, Missouri.
“That during all the above-mentioned times the interest of the plaintiff in the stock of both the Central Belt Railway Company and the St. Louis Belt & Terminal Railway Company were held by defendant in his own name, but for the use and benefit of the plaintiff.
“That from the time the capital stock of said Central Belt Railway Company was, about October 18, 1899, placed in the name of defendant and his associates, as aforesaid, defendant and his associates other than plaintiff were in control of said stock and of the operations of said Company, and were also, from the time of the organization of said St. Louis Belt & Terminal Railway Company, in control of the stock, or a large part thereof, and of the operation of the said St. Louis Belt & Terminal Railway Company.
“That later, to-wit, by a contract dated July 18, 1902, and finally consummated on October 1, 1902, the defendant and those acting with him in control of said corporation, sold all of the stock then issued of the said St. Louis Belt & Terminal Railway Company to the Terminal Railway Association of St. Louis, a corporation, and received in payment therefor, and for promoter’s fees, the sum of two hundred and ten thousand dollars, one-sixteenth part of which belonged to and was the property of the plaintiff. That said entire consideration of two hundred and ten thousand dollars was by said Terminal Railway Association of St. Louis paid to and received by the defendant. Said Terminal Railway Association of St. Louis, as part of the purchase price of said stock further assumed and agreed to pay, and did pay, all outstanding debts and liabilities of said St. Louis Belt and Terminal Railway- Company.
“That by reason of the premises the defendant became and was indebted to the plaintiff in the sum of thirteen thousand, one hundred and twenty-five dollars, and on or abont the second day of October, 1902, the plaintiff demanded from the defendant the payment of his said share in the proceeds of said sale, amounting as aforesaid to the sum of thirteen thousand, one hundred and twenty-five dollars, but the defendant failed and refused, and still fails and refuses, to pay the same or any part thereof to the plaintiff. ’ ’

It concludes with a prayer for judgment. The answer is a general denial. At the close of plaintiff’s evidence and again after the evidence was all in the defendant asked that the jury be instructed peremptorily to find for defendant, which was refused and defendant duly excepted. '

The court gave the following instructions for plaintiff :

“1. The court instructs the jury that if they believe and find from the evidence in this case that during the month of May, 1899, the defendant, W. K. Kavanaugli, and the plaintiff, together with other persons, associated themselves together for the purpose of' building, constructing, maintaining and operating a single or double track railway in and through the County of St. Louis in the State of Missouri, and for the purposes of such railway, of obtaining from the County of St. Louis in the State of Missouri, a grant, franchise or right to build, construct, maintain and operate such railroad; and that it was orally agreed by and between the plaintiff and the defendant, W. K. Kavanaugli, that the plaintiff should own and have a one-sixteenth interest or part in what ever right said association or syndicate should thereafter acquire; and, if you further find and believe from the evidence that it was thereafter determined by defendant and his associates that instead of endeavoring to secure a franchise from the County of St. Louis to themselves directly, said enterprise should be carried out by assisting the Central Belt Railway Company to secure said franchise, and by making an arrangement with the parties interested in said company for securing to defendant and Ms associates the control of said Central Belt Railway Company and said franchise and rights; and if yon farther find and believe from the evidence that it was known by said county court the said two interests were working together to secure said franchise in the name of said Central Belt Railway Company, and that said county court desired said co-operation in order that there might he sufficient financial hacking behind said Central Belt Railway Company; and if you further find and believe from the evidence that in October, 1899, the County Court of St. Louis County granted said franchise to the said Central Belt Railway Company for a belt line railway as above set out, and that later- and in the early part of 1900 the defendant and his associates in said enterprise, did as a result of said plan, secure control of said franchise through securing all or a majority of the stock of said Central Belt Railway Company; and if you believe and find from the evidence that thereafter the defendant and his associates caused said franchise and stock to be transferred to the St. Louis Belt & Terminal Railway Company, and thereafter the St. Louis Belt & Terminal Railway Company transferred all of said right, franchise and stock to the Terminal Railway Company of St. Louis; and if you believe and find from the evidence in this case that the entire capital stock of said Central Belt Railway Company was placed in the name of defendant and his associates, a portion thereof standing in defendant’s name as trustee, and that defendant and his associates other than plaintiff were in control of said stock and of the operation of said company, and were also in control of the stock or a large part thereof and of the operations of the St. Louis Beit & Terminal Railway Company;
“And if you believe and find from the evidence in this ca'se that on or about July 18, 1902, the defendant and those acting with him in control of said corporation sold all of the stock then issued of the St. Louis Belt & Terminal Railway Company, to the Terminal Railway Association of St. Louis, and that defendant received, payment for said stock so held by him or for promoter’s fees, or both, a sum or sums of money over and above all debts and liabilities of said St. Louis Belt & Terminal Railway Company, and has failed to pay plaintiff any portion of same, then your verdict will be for plaintiff.
“2. If the jury find in favor of the plaintiff, they will return a verdict in his favor for such proportionate part of the sum of money said defendant Kavanaugh received from the sale to the Terminal Railway Association of stock of the St. Louis Belt & Terminal Railway Company, or for promoter’s fees, or both, if he received any money from such stock, or promoter’s fees, or both, as the jury may find and believe from the evidence in this case, it was agreed, if it was agreed, that the plaintiff’s interest should amount to, in the association or syndicate formed for the purpose .of acquiring a belt railway franchise, together with interest thereon at the rate of six per cent per annum from the date of demand made by plaintiff on the defendant, if the jury believe from the evidence such demand was made.”

To the' giving of these instructions defendant also excepted. The jury on the- 15th of March, 1917, returned into court its verdict as follows:

“We, the jury in the above'cause, find in fávor of the plaintiff, on the issues herein joined, and assess his damages at the sum of five thousand dollars, with interest thereon at six per cent per annum from August 1, 1902, amounting to $6671.91, aggregating $11,671.91.”

On March 20, 1917, the defendant filed his motion for a new trial, which after specifying as grounds thereof the various matters of exception taken at the trial, contained the following specification of error:

“The verdict filed in this case as the verdict of the jury herein is not the verdict of said jury, because the verdict rendered by the jury in this case was in words and figures as followrs:
“ ‘In the Circuit Court, City of St. Louis, Division No. 5. James Longworth, Plaintiff v. ¥m, K. Kava-naugh, Defendant. No. 36663.
“ ‘We, the jury in the above cause, find in favor of the plaintiff, on the issues herein joined and assess his damages at the sum of five thousand dollars ($5,000), with interest thereon at six per cent per annum from .amounting to.dollars, aggregating’ .dollars.
“ ‘C. L. Claky, Foreman.’
“And the court erred, after the jury had returned with its said verdict and duly delivered the same as its verdict to the court through its foreman, in calling the foreman up to the judge’s desk and saying to said foreman, out of the hearing of the other members of the jury, ‘Don’t you want to give him’ [meaning the plaintiff] ‘interest?’ and thereupon the foreman said to the judge of this court, out of the hearing of the other eleven members of the jury, ‘Yes’ and thereupon the court said to said foreman, out of the hearing of said other jurors, ‘You had better go back and figure it out,’ and delivered said verdict to said foreman. Thereupon said foreman retired with the other members of the jury with said verdict, and shortly thereafter the jury returned into court and the foreman handed, to the court the verdict formerly rendered., with the words ‘date of original petition,’ inserted therein after the words ‘six per cent per annum from’ and the figures ‘$6671.91’ inserted after the words ‘amounting to,’ and the figures ‘$11671.91’ after the word ‘aggregating,’ said three insertions having been made during the second retirement of the jury; and thereupon the court, upon reading said verdict with such insertions erroneously made therein, as above set forth, further erred by asking the said foreman, out of the hearing of a number of the jurors in said case, the’following question, ‘From what date did you’ [meaning the foreman] ‘calculate the interest?’ and the foreman then and there replied to the court, out of the hearing of some of the jurors, as follows, ‘I think August 1, 1.902;’ and the court further erred in thereupon instructing the foreman, out of the hearing of some of the jurors, to strike out the words then erroneously inserted in said verdict reading as follows,£ date of original petition,’ and insert instead thereof the words, ‘Aug. 1,1902, ’ and thereupon the said foreman, without further consultation with any member of the jury struck out said words ‘date of original petition,’ and inserted instead thereof the words ‘Aug. 1, 1902,’ and delivered to the court the said verdict as so twice amended, and the court received and ordered the same to be filed as the verdict of the jury, all of which was over the objection and exception of said defendant.
“That the sum of $6,671.91 is more than six per cent per annum on $5,000 from either the date of the original petition on August 1,1902, and is further erroneous for that reason.”

On March 22,1917, the plaintiff entered a remittitur of $2,285.25, and judgment was re-entered for $9,285.66, to which defendant excepted.

At the following term and on June 25,1917, the court overruled the motion for a new trial, to which the defendant duly excepted. This appeal was duly allowed at that term.

The evidence tended to show that the defendant was president of The Interstate Car Transfer Company, having facilities on both banks for the transfer of railway cars by boat across the Mississippi River at St. Louis, in competition with the Terminal Association. He contemplated and desired the construction of a belt railway that would connect him with, all railroads entering St. Louis. It would be necessary to cross public highways of the county for which the permission of the county court was required by law. This permission could, of course, be granted only to or held by a corporation authorized by law to construct and operate such a railroad-

The members of the county court were greatly interested. They believed that the line would be of great benefit to St. Louis County by inducing the location of manufacturing and other shipping interests upon it, and they desired that it should not come into the hands of the Terminal Association, nor of any interest which might hold it .for purposes of speculation or to suppress competition with existing facilities. They required therefore that applicants should demonstrate to them their financial ability, or ‘ backing ’ ’ as if is called in the record, to do the work and operate the property, as well as their purpose to prosecute the enterprise.

Under these circumstances the defendant consulted with plaintiff and one Clayton as to the prospects of such an enterprise and the ‘best method of procedure. ■Defendant met some parties, including Clayton and Sneed at the Planters Hotel at St. Louis, and discussed with them the matter of procuring a franchise for the necessary street crossings in St. Louis County. Sneed then left, and joined himself with Essen, the recorder of St. Louis County, who is described as “a power,” and Lingenbrinck, a son-in-law of one of the county judges, forming what is called in the' record the Welch crowd, because Welch, Jones and Wagoner repi’esented them respectively on the face of the proceedings. On May 22 the three individuals nominally constituting the Welch crowd filed their petition with the County Court of St. Louis County for the necessary franchise, evidently ignorant of the fact that as individuals they had no authority to hold or use it.

This move was immediately communicated in some way to defendant’s financial associates in New York, who wired to know if it was his application, and he immediately had a consultation with Clayton and plaintiff in his office as to the best means of dealing with the Welch crowd. At this time the interests of the prospective parties to the deal were talked over, and it was agreed and understood that the venture was to be divided into eight parts of which the plaintiff and Clayton, who were working together, should represent one. They also considered the matter of combining with the Welch crowd and concluded to seek the assistance of Essen. Clayton brought about an interview between defendant and Essen at which he was present and at which Essen told the defendant, in substance, that he thought the Welch crowd would get the franchise and suggested a combination with them without disclosing that he was himself one of them. An interview was also arranged by plaintiff' and Clayton between defendant and the members of the county court, who went to defendant’s office to talk over the matter, and met him afterward from time to time and the plan was agreed upon for the combination of the two interests in a corporation, called the Central Belt Railway Company, incorporated July 27, 1899, with a capital stock of $200,000.00 with Welch and others as incorporators. The negotiations were united on this line. By this time there were four applicants for' the franchise, and one of the duties of plaintiff in his connection with defendant in the matter was to observe and report the proceedings of the county court which met during the five or six months these matters were pending, on Tuesday of each week, and to report to defendant. The franchise was granted to the Central Belt on October 4, 1899 and duly accepted during the next following month. •

Immediately upon the granting of the franchise the defendant took charge of the enterprise. He states that he had “succeeded in enlisting the services of all of our natural allies in the enterprise in a thorough and enthusiastic manner,” and had secured a banking house tp take the lead in financing the construction. The breaking out of the Boer war, however, interfered with this branch of the undertaking and it rested in limine until March 14, 1902, when the St. Louis Belt & Terminal Railway Company was' incorporated for the purpose of owning and constructing the same road, the defendant being named as one of the first board of directors. Its capital stock was $3,000,000, $800,000 of which was to be preferred. On the 31st day of May, 1902, the Central Belt Eailway Company transferred to the St. Louis Belt & Terminal Company all the rights it possessed by virtue of the several orders of the county,court granting its franchise, subject to all the obligations, conditions and responsibilities imposed by said orders on said Central Belt Eailway Company and its successors’ and assigns. On July 18th of the same year Kavanaugh and his associates, acting through Kavanaugh alone, reciting that • they were owners of all the capital stock in the Interstate Car Transfer Company and all the capital stock and subscriptions to capital stock of the St. Louis Belt & Terminal Company, made an agreement by which he, acting for himself and his associates, sold to the Trust Company all the capital stock of the Interstate Car Transfer Company and all the stock and subscriptions to stock of the St. Louis Belt & Terminal Company, at the price of $135 per share for the 5,000 shares of the Car Transfer Company, amounting to $675,000, and the 8,000 shares of preferred stock of the St. Louis Belt & Terminal Company at $20 per share, amounting to $160,000, being a total consideration of $835,000. This instrument, was signed by W. K. Kavanaugh for himself and associates as parties of the first part and the Missis-sipi Valley Trust Company, agent, by Julius S. Walsh, president, party of the second part. Attached to this agreement was a statement signed by Julius S. Walsh, president, as follows:

“In execution of the attached agreement the Mississippi Valley Trust Company is acting as agent for the Missouri Pacific, St. Louis Iron Mountain & Southern, Wabash, Louisville & Nashville, Cleveland, Cincinnati, Chicago & St. Louis, St. Louis, Vandalia & Terre Haute,'' Baltimore & Ohio Southwestern and the St. Louis & San Francisco Eailway Companies.”

The Terminal Association, as the beneficiary of this contract, became the. owner of the stock of the St. Louis Belt & Terminal, and paid all amounts dne defendant and Ms associates, on contract, as well as the obligations of the St. Louis Company. It paid Kavanaugh the one hundred and sixty thousand dollars due for the stock, and as a liability of that company 'which it assumed, paifl him an additional fifty thousand dollars for services in securing the franchise.

The evidence is indefinite as to what he paid out. To some of his associates in the Central Belt deal he paid ten thousand dollars, settled with others through Mr. L. R. Wilfley, his associate and attorney, for less, and one of them, Mr. Essen, who testified, thinks he got more, having received a payment subsequent to the first ten thousand dollars. In answer to plaintiff’s demand he said, in substance, that there was nothing coming to him.

So far as may be necessary the details of the evidence will receive further notice as we proceed with the opinion.

I. This cause has been once before in this court. It had been tried upon a petition declaring on the same contract now before us, and the verdict of the jury was for plaintiff. It was set aside on grotmds, (1) that it was against the. weight of the evidence; (2) that it was contrary to the court’s instructions, and (3) that it was excessive. The plaintiff then filed an amended petition, setting up the same contract, with further particulars as to the alleged breach. [Longworth v. Kavanaugh, 190 ¡3. W. 315.] This is the petition upon which the issues were submitted at the last trial, and the verdict of the jury is a second verdict thereon, and the-question is now before us whether or not the finding is supported by any substantial evidence in this record.

The entire evidence, including the testimony of defendant, shows that he was highly sophisticated with respect to such matters as the franchise,-,which is the substance of this inquiry. Pie desired., to, obtain it for Ms own benefit to be derived indirectly through the corporation of which he was the head as well as directly through his own individual services. It was also thought to be of importance in the development of the industries of St. Louis County, represented by its county court. Both plaintiff and Clayton were acquainted with the conditions and influences prevailing in the county and the interest which should obtain it would occupy a commanding position with reference not only to traffic having its origin or destination in the City of St. Louis, but also in interstate traffic crossing the Mississippi at that point, subject to an arbitrary burden for the transfer. Every railroad entering the city and engaged in interstate business was interested in an arrangement by which the profits of this part of the transit should not be permitted to get away from them. This is conclusively demonstrated in the evidence by the entrance into the transaction of the Mississippi Valley Trust Company as agent for them.

It is natural that, under these circumstances, persons wise in such matters should desire to become interested in the construction of a road by which this immense traffic could be collected and distributed, and incidentally to obtain from the County Court of St. Louis County the permission to cross the highways of the county without wMch it could not be built. It is also natural that the defendant Kavanaugh should be interested through his Car Transfer Company, the special interest of which appears in the result, which we will notice in due time, and we will also notice the quality, so necessary in matters of that Mnd, of concealing from his right hand what his left hand might do; and he put both hands at work immediately. Essen, whom- he describes as “a power,” with Lingenbrinck, a son-in-law of one of the county judges, and Sneed, superintendent of the Suburban Railroad, got into the field before then and under cover of Welch, Jones and Wagoner, whom they placed in front of their own bodies for the inspection of tlie public, filed tlioir application for this coveted franchise. Defendant saw the necessity for gathering’ to his own assistance some local, that is county, assistance, to watch the proceedings of the county court and put him in contact with such persons as might he of assistance. It was under the circumstances and measureably for these purposes that he sought plaintiff and Clayton for assistance. Each of the two relates in his testimony that he employed them to assist in obtaining the franchise, promising each of them one-sixteenth of whatever financial gain might come of the enterprise, which he said, in substance, would be divided into eight parts, one of which should go to them, each receiving one-sixteenth of the whole. There is much other evidence, including that of defendant himself, which tends to corroborate their statement. He says, in effect, that something took place between him and them which led him to think they might afterward claim some compensation from him, and that he fortified himself by making a memorandum of a meeting he afterward held with them when he had discovered that others were in the field before him, to the effect that nothing was coming to them. He also, in making distribution of what he claims to be the proceeds of the final sale, recognized this theory of eighths and sixteenths. We have little doubt, from the evidence, that when plaintiff and Clayton began their work by bringing him into contact with Essen and thq members of the county court, such an arrangement existed between them. Defendant says that whatever arrangement there was terminated, by the failure to obtain the franchise as against the “Welch crowd.” Notwithstanding this plaintiff kept-on with his' activities. Pie testified that in addition to his connection with bringing about interviews between Essen and all the judges of the county court and defendant, he attended, during the five months the matter was pending before that body, every meeting which it held, under instructions from defendant to keep his mouth shut and to report whatever-was done in that connection. The court met each Tuesday. One of the judges testified to his presence and activities. That the arrangement was made and that the services continued up to the timé of the granting of the franchise to the Central Belt Railway Company on October 4, 1899, there can be no doubt. It stands practically admitted in the record. If we may be permitted to use the figure, plaintiff and Clayton were the fingers of the left hand while his right was at work with the material they gathered, as well as- any other matters useful to the enterprise. During this time Mr. L. R. Wilfley became associated with the enterprise as defendant’s attorney, gathering in some of the claims of the original promoters, including Bingenbrinck and Sneed, at what they would take for their interest, and receiving $10,000 for himself as an attorney’s fee.

The foregoing are a few features of the evidence that has convinced us that the jury had sufficient evidence before it from which to find that the testimony of plaintiff and Clayton that the former because connected with the enterprise under an agreement with the defendant that he would share in its proceeds to the extent of an interest of one-sixteenth part of the whole, and that he performed such services as were required of him in accordance with its terms, is true. His connection and services covered the period from the time he came into it for the purpose of assisting defendant about May 19, 1899, until the final order of the county court by which the franchise was granted to the Central Belt Company. When that was done the rights of the parties were fixed and it only remained to liquidate the property interest so acquired.

Evidence SupportsAmount of verdict, II. Clayton testified .that at the time this agreement was made between plaintiff, himself and defendant, the defendant explained that there, was being organized a corporation for three million dollars and that sixty-five per cent of this stock would go to the bondholders and that there would be thirty-five per cent for the promoters, of which, he and Lockwood, the secretary of the Interstate Company, would have one-eighth between them, and the witness and plaintiff one-eight. No such company was incorporated until March 14, 1902, when the St. Louis Belt & Terminal Company with capital stock to that amount, $800,000 of which was preferred, was incorporated in this State for the purpose of constructing and owning the same line. On May 31,1902, the Central Belt Company conveyed to it “all the rights, privileges, and authority heretofore granted to it, and its successors and assigns, by the County Court of St. Louis County, to build, maintain, and. operate a railroad in said county,” subject to all its obligations with reference thereto. No consideration was expressed or paid for the transfer, so that every interest in this franchise, including whatever might be. realized from it, passed to the new company of which defendant was president. It was simply a step toward the realization of something out of the Central Belt Company in which he held all the interest of plaintiff for the further purpose of converting it into tangible property for final distribution to the equitable owners. It made no change in the situation of the enterprise other than to substitute for the old a new agency for the purpose of turning it into money. Had it proceeded to issue its bonds and construct its line, issuing sixty-five per cent of each kind of its capital stock as a bonus therefore, the old promoters would have been entitled to the remaining $1,050,-000. It is unnecessary, however, to speculate as to how much they would have received in distribution under that plan had it been carried out, for it was not carried out. On July .18, 1902, the defendant purporting to act for himself and his associates transferred the entire three millions of capital stock of the St. Louis Company to the Mississippi Valley Trust Company as agent for eight railroad companies entering St. Louis, as well as the entire capital stock of his own Car Transfer Company, amounting to $500,000, receiving therefor, in cash the sum of $675,000 for the capital stock of his own company and $160,000 or $20 per share for the preferred stock of the St. Louis Belt, which latter sum represented the profits of himself and his associates, including the plaintiff, in the Central Belt Company, unless that profit was enhanced as follows:

The stock was purchased on account of the St. Louis Terminal Association which became the owner iruthe transaction, and the indebtedness of the two corporations was paid through that association. The defendant charged the St. Louis Company for the services in procuring the franchise of himself and his associates $50,000, which was also paid by check of the Terminal Association, which was duly cashed by him.

Recapitulating: The evidence shows conclusively that, the word “associates” as used by defendant in these transactions meant those associated with him in procuring the Central Belt franchise, including the plaintiff; that he held the franchise in trust for himself and associates; that all his interest in the Central Belt, whether represented by stock or otherwise, was subject to that trust; that the transfer to the St. Louis Belt & Terminal carried nothing but the franchise which constituted the entire property of the St. Louis Terminal of which Kavanaugh for the use of himself and associates in the Central Belt Company was the only stockholder, and that his subsequent transfer of this stock to the Mississippi Trust Company carried nothing of value except the interest of himself and associates in the Central Belt franchise, while the payment of $50,000 for services in procuring the franchise inured to himself and the same associates. All money expended by the St. Louis Belt Company in exploration or construction or otherwise, was paid by the Terminal Association, in addition to the $210,000 paid Kavanaugh for the entire stock and services, so that the latter sum represented the profits made for himself and associates only. The $50,000 paid to Kavanaugh and included in this amount was not for any services rendered the St. Lonis Company, hut for services rendered to the Central Company for obtaining the franchise, and constituted a payment by the Terminal Association for the Centrial franchise, in addition to the amount of $160,000 paid for the preferred stock which represented it in the transfer to the Trust Company.

The transfer by Kavanaugh and his associates of the Central Company’s franchise to himself and the same associates as sole stockholders of the St. Louis Belt did not discharge it from the trust subject to which he held it in the former capacity.

The jury having found that the plaintiff was associated with the defendant under the arrangement pleaded, it was their duty to find the amount received by the defendant for the use of the plaintiff under' that arrangement. It is only necessary to say in that connection that the verdict is well within the amount shown by the evidence.

III. The petition states, in substance, that in May, 1899, the defendant and plaintiff with Clayton, Wilfley and others associated themselves together for PnrPose constructing, maintaining and operating a railway through the County of St. Louis, and for that purpose to obtain from the county a grant or franchise from the county court to build and operate the same across the highways of the county and orally agreed that the interest of the associates should be apportioned so that plaintiff should have an interest amounting to one-sixteenth in the enterprise and that for that purpose they joined themselves with others who desired to do the same thing, and who organized a railroad corporation under the name of the Central Belt Railway Company, with powers necessary for that purpose, the stock of which, or practically the whole of it, was issued or transferred to defendant in trust for carrying out the purposes of its organization.

The defendant contends that the contract so pleaded is against public policy because it implies, or necessarily involves, the use of improper and unlawful methods to influence the county court in the performance of a public duty for which compensation is not. recoverable by suit. We do not understand the argument to be that the arrangement,as stated in the petition is void on that ground, hut rather that the contract proven is against public policy and is therefore inadmissible to prove a cause of action. We will, therefore, proceed to examine the contract shown in plaintiff’s evidence, assuming that improper acts done and intentions entertained by defendant not required by the terms of the contract ought not 'to defeat a recovery.

That the contract proven contemplates the performance of services by the plaintiff in procuring a franchise for the benefit of defendant and his associates authorizing the construction of a railroad across certain highways of the county is evident. This necessarily involved association with others in the prosecution of the enterprise, including obtaining the consent of the county court for that purpose. It also involved the creation of a corporation consisting of not less than five persons for that purpose. Until that number should associate themselves together there could be no instrumentality to receive the permission. One of the questions then before the defendant was the personality, usefulness and number of the incorporators. There was no maximum limit fixed by law as to the number. ' Nor were qualifications fixed by law. :

It is plain the contemplated Belt line could only be built in St. Louis County with the permission of the county court. As the work contemplated was a single road which must be definitely located before the permission could be granted, it must go to a single corporation, and the court must make the selection. Its power in this respect was not in any sense judicial. [Aldridge v. Spears, 101 Mo. 400.] That railways are public highways, and that their privileges and duties constitute a public use bas long been judicially settled. The public is interested in their establishment, and the Legislature has made the county courts of the respective counties its administrative agent to determine whether the public interest requires such interference with the use of the highways and to prescribe rules by which the public may be protected in such use.

The evidence definitely presents the questions which interested the county court in this case. (1) They desired to protect the highways from unnecessary interference and the public from danger arising from the proposed use; (2) to promote the industrial prosperity of their county by new and useful shipping facilities; (3) to create healthy competition in the terminal handling of freight and passengers, and (4) to provide an instrument of such competition which would be unlikely to strengthen what they believed to be an existing monopoly by merger with it. In plainer words they state, in substance, they did not want it to fall into the hands of the St. Louis Terminal Association.

There is every evidence in this record that the county court was actuated in everything it did by a desire to serve the public in a matter which they believed to be of the greatest public importance, and that they did everything they could to acquire information to assist them in the accomplishment of that object. The law prescribes no method which shall govern them in this respect. It was open to them to faithfully perform their duty by such means as should be presented by circumstances and they were at liberty to acquire information from all sources and to use it for the protection of the public. They had a dutjr to perform beyond remaining supinely in the court house waiting for some one to appear and publicly argue their respective claims. It was their duty as it is the duty of legislators to acquaint themselves with the needs of the public and the best way to supply those needs.

In this case others were in the field before the defendant and his associates. Instead of openly approaching tbe court in their own interest they approached it through straw men, who appear in the record as the “Welch crowd,” and still others came forward to procure the same permission. The court was well aware that the “Welch crowd” had organized itself into a corporation having legal authority to take, hold and use the franchise. Through plaintiff and Clayton, defendant got into communication with Essen and all the members of the county court, the latter appearing especially solicitous as to his transfer company, and his ability to provide for financing the enterprise, and finally, the two crowds coming together, the franchise was granted to the Central Belt and Terminal Company.

We do not think that defendant’s counsel intend to say that a person desiring to organize a corporation of this kind must, to avoid the han of unlawful combination, exclude from the enterprise all persons similarly inclined, yet it is not easy to interpret his argument otherwise. The . primary interest of the county in this case was the development of its industrial resources. It had nothing for sale but much to promote the prosperity of all its people and it was the duty of their agent, the court, to encourage and consolidate the elements which might contribute to this result.

We have considered this question with particular reference to the provisions of the Missouri statute relating to the relations and the duties, in that connection, of the county courts, and from that standpoint we can see nothing in the combination of individuals formed for the purpose of prosecuting this enterprise, inconsistent with the public good. In the light of this legislation the case is probably unique, but the same general principles were thoroughly discussed in the Supreme Court of the United States in an opinion by Mr. Justice Beewer in Hyer v. Richmond Traction Co., 168 U. S. 471. The court at page 476, said:

“The case thus presented is: Two parties apply separately to a city council for a franchise to construct a street railway. The banker from -whom each of the parties is seeking financial assistance advises them to unite and make a single application. They do so, and thereafter the city council, aware of both interests, of .the two applications,- of the advice to consolidate, and •the party by whom it is given, and of all the terms of the consolidation, grants the franchise to only one of the parties. Was the agreement to unite in one application against public policy and Void?
“In the view we have taken of the second of these questions it is unnecessary to definitely determine the answer which should be given to the first, though it may not be inappropriate to observe that the vice which is so frequently detected in contracts and agreements of a similar nature lies in the fact of secrecy, concealment and deception; the one applicant, though apparently antagonizing the other, is really supporting the latter’s application, and the public authorities are misled by statements and representations coming from a supposed adverse but in fact friendly source. It would scarcely be doubted that two or more parties may properly unite in a partnership or corporation and thus unitedly make, in the name of the partnership or corporation, a single application for a grant or franchise; and, if they may so unite before any application, it is not easy to see why they may not so unite after having once made separate applications, providing all the facts and circumstances are fully disclosed and the public and the public authorities act upon full knowledge; and if they may sometimes so unite, an agreement for uniting is not necessarily void. ’ ’ 1

That case had been tried in the Circuit Court of the United States for the Eastern District of Virginia which held, upon demurrer to a bill in equity to enforce the .contract mentioned in the foregoing opinion, that the remedy of complainant was at law and not in equity, and accordingly sustained the demurrer. Upon appeal to the Circuit Court of Appeals for the Fourth Circuit tlie judgment was affirmed by a divided court in an opinion of SimoNtoN, Circuit Judge, discussing at length and with great learning the question of public policy, but declining to pass upon it. [Hyer v. Richmond Traction Co., 80 Fed. 839.] Upon certiorari to the Supreme Court of the United States the judgment of the Circuit Court of Appeals was sustained in the opinion from which we have quoted. Five of the Justices concurred in the opinion, Habí AN, J., also concurred on the ground that the contract alleged in the bill .was against public policy, while Bbown and Peckham, JJ., dissented on the ground that the contract was enforcible in equity as well as at law.

This entire question was thoroughly discussed in the opinions to which we have referred and it is only necessary for us to say that they thoroughly demonstrated the principle that the contract in question here is enforcible at law. In our opinion there is nothing in the opinion o.f Judge HaklaN inconsistent with this conclusion. In that case two full-fledged corporations had applications pending before the city council for permission to construct the road in a street of Richmond. They agreed, in effect, that to whichever the franchise should be granted they should share equally in the result. Judge Habían thought that this arrangement carried deception on its face. In this case there was no corporation or other agency capable of holding the franchise, in existence when the arrangement was made. There is no deception in the situation. The judges were fully informed of the arrangement, and, as the evidence shows, suggested it after investigation, and the corporation was organized in accordance with that suggestion. If it concealed any ulterior and unlawful element upon which the plaintiff acted it should have been pleaded in the answer. [Kelerher v. Henderson, 203 Mo. 498; Musser v. Adler, 86 Mo, l. c. 449.]

We hold that these parties and all of them had the right to unite in organizing a corporation for the purpose of constructing this road and incidentally obtain a franchise therefor; that, being organized and incorporated it was possessed of all the powers incident to such corporations under the statutes relating thereto, including the right of the stockholders to distribute the stock by arrangement among themselves; that in doing so they might create a valid trust in the holder as to the whole or any part thereof, and that such trust would be en-forcible at law or in equity as the facts might indicate.

IY. The objections of the defendant to the instructions given by the court for the plaintiff, have been practically answered in the second paragraph of this opinion, in which we traced the career of the franchise of the Central Belt Company, which constitutes the original trust fund for the conversion of which this suit is prosecuted. It was the only property of that company, and its capital stock represented it. Having received the capital stock he held the paper title by means of which he might absolutely dispose of the fund for the benefit of himself and his associates according to their respective interests under the original agreement, and not otherwise. If he converted it into money or other property the same trust attached itself to the proceeds. 'When-he caused the St. Louis Belt to be organized he acquired the entire capital stock for himself and associates and caused the franchise which constituted the trust fund to be transferred to it for the benefit of himself and his associates, the trust still clung to the new title under which he held it. When he transferred the new capital stock through the Mississippi Valley Trust Company to the Terminal Association this same franchise was the only property which represented the stock so transferred, because all other property had been acquired by the creation of indebtedness which was assumed and paid with interest-by the Terminal Association in addition to the payments for the stock, so that the latter represented the profit arising from the trust fund and nothing else, and for this lie was hound by his contract to account to his associates whom he carried with him by that designation through all his operations with this property. We recapitulate these things in this brief form to indicate without unnecessary repetition the principles ■ evidently in the mind of the court when it gave these two instructions. -They conform to this theory and we see no substantial error in their form.

Y. Error is predicated on the fact that the court permitted the jury to retire and amend its verdict by computing the interest on the demand, which they did, again coming into court without having stated, except as an inference from the figures, the date from which it had been computed. No objection was made or exception saved at the time but the circumstance was fully detailed in the motion for a new trial. If this action was error the court should have been given an opportunity to avoid or correct it at the time. It was practically a matter of exception, and the objection came too late.

We think the judgment should 'be, and it is, affirmed.

Ragland and Small, CG., concur,

PER CURIAM:

In the foregoing opinion of BrowN, C,. Graves, D. E. Blair, Elder and Higbee, J. J., concur; J. T. Blair, J., concurs in result; Walker, C. J., and Woodson, J., dissent.


author: RAILEY, C. PER CURIAM:

text:
    ROBERT L. MARTIN et ux., Appellants, v. PORTER JONES et ux., WILLIAM A. GLADNEY et ux. and CHARLES MARTIN, WILLIAM BRISCOE et al. ROBERT L. MARTIN et ux., Appellants, v. PORTER JONES et ux., WILLIAM A. GLADNEY et ux. and CHARLES MARTIN, WILIAM BRISCOE et al.; PORTER JONES, Appellant.
    Division Two,
    March 7, 1921.
    1. CONVEYANCE: Lands Omitted by Mistake. In a suit in equity to reform and correct a deed, tile deed should be reformed to include a tract of land described in the contract of purchase, paid for by the grantee and still owned by the grantor, but omitted from the deed by mutual mistake.
    2. -: Land Not Owned By Grantor: Recovery: Lien. In an equity suit to reform and correct a deed, the grantee is entitled to recover from the grantor the reasonable value of a tract described in the contract of purchase and in the warranty deed, paid for by the grantee, but which the grantor did not own, with interest from the date of the deed, and to have said sum declared a lien on land conveyed by the grantee to the grantor as the consideration for the land described in the deed from said grantor.
    3. -: Land Included by Mistake: Reformation. A tract of land which the grantor did not own, and which was not described in the contract of purchase, but through mutual mistake was included in the deed, should be excluded therefrom, and the deed so reformed as to exclude it.
    4. JURISDICTION: Adversary Defendants: Quieting Title. A court of equity, having acquired jurisdiction of the subject-matter and of the parties, will not relax its grasp until it has adjudged all matters of controversy between the adversary defendants concerning any part of such subject-matter. In an equitable proceeding to quiet title the court will not only adjust the adversary claims between plaintiff and the two defendants as to all such tracts, but the adversary claims of one defendant against the other as to one of such tracts.
    5. CONVEYANCE: Breach of Warranty: Proceeding Against Immediate and Remote Grantor: Subrogation. Gladney took Jones, uppp tlig Jand, pointed out to him the tract he was proposing to sell, represented that it contained 180.40 acres, and Jones relied thereon; Gladney made a warranty deed to Jones, which recited that the number of acres was 180.40 more or less, and described that number, but included one tract of 40 acres which Gladney did not own, but had already sold to another party; thereupon, Jones conveyed, by warranty deed, said 180.40 acres to plaintiff, in exchange for another 160 acres. Held, that plaintiff had the legal right to sue Gladney direct upon his covenant of warranty to Jones, or to sue Jones upon his covenant of warranty to plaintiff, and to choose to proceed against Jones and recover the reasonable value of the forty acres so omitted, in order that he might have a lien on the 160 acres he had conveyed to Jones as the consideration for the deed; and having joined both Jones and Gladney as defendants, Jones had the right, by cross-hill against Gladney, to be subrogated to the rights of plaintiff, and, by paying to plaintiff the reasonable value of said forty acres, to have judgment against Gladney for the amount thereof. •
    Appeal from Montgomery Circuit Court. — TJon. Ernest 8. Gantt, Judge.
    REVERSED AND REMANDED (with directions).

      Derwood Williams, 8. 8. "Nowlin and Pearson & Pearson for appellants.
    (1) When a court of equity, as in the case at bar, acquires jurisdiction of a cause, it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits, by doing full, adequate and complete justice between all the parties. It will not content itself in this regard by any half-way measures. It will not declare that a party has been defrauded of his rights, and then dismiss him with a bland permission to assert at new cost and further delay, those rights in another forum. School Dist. v. Holt, 226 Mó. 415; Keaton v. Spradling, 13 Mo. 324; Woodward v. Matson, 106 Mo. 362; Reyburn v. Mitchell, 106 Mo. 378; Wehrs v. Sullivan, 217 Mo. 179; Bernard v. Keithly, 230 Mo. 223; Waddell v. Frazier, 245 Mo. 402. It will retain jurisdiction to do full and complete justice between all the parties. Corby v. Beane, '44 Mo. 381. And, determine all question arising in the cause whether of law, or fact. Hagan v. Natl. Bank, 182 Mo. 345; Baker y. McDaniels, 178 Mo. 447. (2) Appellant Martin comes into court, an innocent and injured complainant, with clean hands, ready and willing, to do equity, (a) He has complied in every particular with his contract and obligation with Jones; he has made no mistakes. On the record Martin’s right to recovery is .absolute, notwithstanding Jones’s plea for equitable relief to have Martin’s deed reformed. Jones admits a breach of the covenants of the warranty in his deed to Martin — unless he is granted some relief, is bound to respond in damages for forty acres of ground, for which Martin paid $30.55 per acre. Allen v. Kennedy, 91 Mo. 324; Langenberger v. Dry Goods Co., 74 App. 12. But, for the defendant Jones’s plea of mutual mistake, no evidence could have been heard by the court to vary, contradict or modify the terms of Jones’s covenants of warranty, and they were bound to stand. Kellogg v. Maline, 62 Mo. 407; Cantrell v. Granee, 161 Mo. App. 312; Whiteside v. Magruder, 72 Mo. App. 471; 17 Cyc. 620. (b) Jones, in his cross-bill, pleads two mistakes in Martin’s deed; both made by himself. One is in his favor; the other is against him. One, that he sold Martin forty acres of ground that he did not have, took his money for it, still has it, and wants to keep it. The other, that he deeded Martin forty acres of ground, that he had no title to, 'and wants the court to reform the deed by ordering it stricken out of said deed, and thereby relieving him of his obligation on his covenants of warranty to Martin, without doing-equity to Martin. In other words, he is asking the court to make said deed speak his intentions regardless of whether it speaks Martin’s intentions, (c) Under the pleadings, it was proper for Joites to offer evidence of a mistake in the description in the deed; and it was also proper for Martin to offer evidence, showing an express agreement on the part of Jones to convey 180.40 acres by said deed; and that Martin was led, by Jones’s statement, to believe that there was 180.40 acres in the tract he bought, and that Jones’s deed properly described that 180.40 acres. Williamson v. Brown, 195 Mo. 329. (3) It is not material, whether or not the person making-false representations upon which another acts, to his own disadvantage, knows them to be false; the assertion to the injury of another, of something not known to be true, is equally reprehensible, in law as in morals, with the assertion of that known to be false. Pomeroy v. Benton. 57 Mo. 548; Florida v. Morrison, 44 Mo. App. 538-9. Jones may not have known, as he claims, that his representations as to the number of acres in the tract were false, yet, if he made them not knowing they' were true, he was guilty of a fraud. Friend v. Jones, 185 S. W. 1160; Buford v. Caldwell, 3 Mo. 479; Caldwell v. Henry, 76 Mo. 259. (4) Jones cannot have the mistakes made against him corrected, unless he is willing to and offers to correct the mistakes made by the same deed in his favor. Henderson v. Dicky, 35 Mo. 120; Brooking v. Stewart, 17 Mo. App. 303. (5) The measure of Martins’ relief is that proportion of the purchase money which the value of the land he failed to get, bears to the whole consideration. Howard v. Hearst, 156 Mo. App. 211; Stead v. Rosier, 157 Mo. App. 309; Evans v. Fulton, 134 Mo. App. 662; Frank v. Oregon, 167 Mo. App. 497. (6) Martin is also entitled to have the purchase money deficit charged as a vendor’s lien, on the one hundred and sixty acres conveyed by him to Jones, as a part of the purchase price of the said 180.40 acres. Johnson v. Burks, 103 Mo. App. 227; Barlow v. Dulaney, 86 Mo. 588; Florida v. Morrison, 44 Mo. App. 534.
    ■ Sutton & Huston and Bosenberger & Dowell for respondent, Porter Jones.
    (1) The right to have reformation in a proper case is as absolute as any other right that a court of equity may be called upon to enforce or protect. Steward v. Hadley, 55 Mo. 245; Williamson v. Brown, 195 Mo. 333; Johnson v. Taber, 10 N. Y. 319; Fischer v. Dent, 259 Mo. 91; Collier v. Gault, 234 Mo. 457; Ezell v. Peyton, 134 Mo. 484; Stephens v.. Stephens, 183 S. W. '572. (2) A misrepresentation which will he sufficient to defeat equitable relief sought by the person making such misrepresentation must he made as a positive assertion, calculated to convey the impression that the speaker has actual knowledge of its truth, when in fact, he is conscious that he has no such knowledge. Snyder v. Stemmons, 151 Mo. App. 166; Adams v. Barber, 157 Mo. App. 392; Deyer v. Cowden, 168 Mo. App. 660; Ins. Co. v. Carson, 186 Mo. App. 228; Whittiker v. Miller, 188 Mo. App. 415; Peters v. Lohman, 171 Mo. App. 482; Stacey v. Robinson, 184 Mo. App. 61; Glass v. Temple-ton, 184 Mo. App. 539; Bank v. Hutton, 224 Mo. 70; Stonemets v. Head, 248 Mo. 262; Coal Co. v. Halder-man, 254 Mo. 639. (3) The maxim that he who seeks equity must do equity does not invest courts of equity with mere arbitrary discretion to require of the complainant as a condition of the relief to which he is otherwise entitled the performance of conditions not warranted by settled principles of equity jurisprudence. Manternach v. Studt, 240 Ill. 464. (4) The ancient maxim that he who comes into equity must come with clean hands has been applied to various kinds of cases, but it has its limitations. The most important is that the iniquity which prevents the pursuit of an equitable remedy must relate to and he connected with the subject-matter of the equitable relief sought and must arise out of the same transaction, and the misconduct complained of must be so connected with the subject-matter as to affect the equitable relations between the parties. Foster v. Winchester, 92 Ala. 497; Mossier v. Jacobs, 66 Ill. App. 571; Chicago v. Stock Yards Co., 164 Ill. 224; Gas Light Co. v. Coal Tar Co., 65 Md. 73; Wright v. Wright, 51 N. J. Eq. 475; Trice v. Comstock, 121 Fed. 620; Kinner v. Lakeshore Railroad, 69 Ohio St. 344; Stegmann v. Weeks, 214 S. W. 136.

      Frank Howell, William C. Hughes and Creech & Penn for respondent, William A. Gladney.
    (1) When the equity side of the court obtains lawful jurisdiction of the person for one purpose, it may not, in that suit, hold him to answer for another matter. Pulton v. Fisher, 239 Mo. 133. (2) It is incumbent on the plaintiff in a cross-bill to cause the defendant therein to be served with process, summon or notice of the filing of the cross-action. 5 Ency. PI. & Prac. p. 658; 16 Cyc. p. 211; 6 Stand. Proe. p. 288; Tucker v. Ins. Co., 63 Mo. 595; Fulton V. Fisher, 239 Mo. 133. (3) The cross-hill must (1) he germane to the subject-matter of the petition, and it must (2) constitute a defense to the cause of action stated in the petition. 5 Stand. Proc. p. 276; 16 Cyc. p. 331 and 332; 5 Ency. PL & Prac. p. 641; Joyce v. Growney, 154 Mo. 265; Mathiason v. St. Louis, 156 Mo. 200; Fulton v. Fisher, 239 Mo. 136; Wolz v. Yenard, 253 Mo. 67. (4) That the defendant to a cross-bill answers after the court has overruled his plea in abatement, does not preclude him from raising the point on appeal. The cross-bill cannot stand on the ground that it will prevent a multiplicity of suits, when it renders the pleadings multifarious; nor on the theory that equity having gained jurisdiction will carry it until complete justice is done, when the jurisdiction is extended to embrace subjects of litigation of a different character and between different parties. Fulton v. Fisher, 239 Mo. 134. (5) The covenants of seizin and warranty run with the land, and a conveyance of the land operates as an assignment of the covenants to the grantee, so that the chose in action becomes the property of the grantee, and the grantor has no cause of action against the 'prior grantors, for he has assigned the cause of action to his grantee. Johnson v. Johnson, 170 Mo. 48; Allen v. Kennedy, 91 Mo. ¿24; Langenberg v. Heer, 74 Mo. App. 12; Coleman v. Lucksinger, 224 Mo. 17; Vandoren v. Relfe, 20 Mo. 455; Diggs v. Henson, 1G3 S. W. '566; Orosley v. Evans, 195 S. W. 516. (6) Jones pursued the wrong course to protect himself against any judgment Martin might have obtained against him for breach of warranty. Instead of filing a cross-bill against Gledney, he could have given Gladney a proper notice, directing him (Gladney) to defend the warranty, and• recovered of Gladney attorneys’ fees, costs and expenses incurred in defending the warranty, as well as the damages that might have been adjudged. Plazelott.v. Woodruff, 150 Mo. 534; Long v. Wheeler, 84 Mo. App. 101; Pineland v. Trust Co., 139 Mo. App. 209; Coleman v. Clark, 80 Mo. App. 339; Quick v. Walker, 12;5 Mo. App. 257; Mackenzie v. Clement, 144 Mo. App. 114. (7) A reply cannot be used in aid of the petition by introducing for the first time a new cause of action or an additional cause of action, nor to engraft on the petition a material allegation omitted from the petition. 18 Ency. PI. & Prac. 659, 690, 707, 708; 6 Ency. PI. & Prac. 463; 7 Stand. Proe. 136, 137; 31 Cyc. 255; Magruder v. Admire, 40 Mo. App. 135; Rhodes v. Land Co., 150 Mo. App. 314; Moss v. Pitch, 212 Mo. 484; Crawford v. Spencer, 36 Mo. App. 82; Stepp v. Livingston, 72 Mo. App. 19; Jackson v. Powell, 110 Mo. App. 252; Hill v. Mining Co., 119 Mo. 30; Steel v. Railroad, 147 S. W. 219; Milliken v. Com. Co., 202 Mo. 654; Simpson v. Land Co., 126 S. W. 1000; Strauch v. Flynn, 108 Minn. 313, 122 N. W. 320. (8) Recovery must be had, if at all, on the cause of action stated in the petition, and not on a new cause stated in the reply. Mathieson v. Railroad, 219 Mo. 542; Moots v. Cope, 147 Mo. App. 76; Schneider v. Patton, 175 Mo. 685; Réed v. Bolt, 100 Mo. 62. (9) A court of equity will reform an instrument, which by reason of a mistake fails to carry into effect the intention of the parties. Leitensdorfer v. Delphv, 15 Mo. 167; Plenderson v. Beasley, 137 Mo. 199; Hunter v. Patterson, 1421 Mo. 310; Wolz v. Venard, 253 Mo. 67; Sicher v. Rambouseh, 193 Mo. 128; Williamson v. Brown, 195 Mo. 352; Ezell v. Peyton, 134 Mo. 490; Fisher v. Dent, 259 Mo. 91; Stewart v. Hadley, 55 Mo. 235. (a) While the appellate court is not hound by the findings of tlie trial court, and it is the duty of the appellate court to try the issues aneiv, yet, where there is a conflict in the evidence adduced, the appellate court will defer to the finding’s of the trial court, for the reason that the chancellor had a better opportunity to weigh the testimony, having seen the witnesses and heard their testimony. Huffman v. Huffman, 217 Mo. 182; Waddle v. Frazier, 245 Mo. 391; Redding v. Badger, 127 Mo. 625; Johnson v. Stebbins, 177 Mo. 581. (10) Jones’s cross-bill is not an action upon a warranty as to the quantity of land, nor is it an action based on an agreement of Grladney to convey a certain number of acres of land to Jones,'neither does the deed from Grlad-ney to Jones warrant a specific number of acres. The statement of the number of acres is a matter of description. Hendricks v. Vivion, 118 Mo. App. 421; Hobein v. Frick, 69 Mo. App. 263; Wood v. Murphy, 47 Mo. App. 539; Martin v. Stone, 79 Mo. App. 313; Mires v. Sum-merville, 85 Mo. App. 183; Freesz v. Butcher, 191 S. W. 66;'Lindsay v. Smith, 166 S. W. 820. (a) The deed from Grladney to Jones was a complete contract between the parties and showed a bulk sale of the land at a price in solido for the entire tract. Hendricks v. Vivion, 118 Mo. App. 423. (b) Courts of equity will not aid parties who neglect to use their judgment and discretion in business transactions. Bryan v. Hitchcock, 43 Mo. 531. (11) The degree of proof of fraud must not rest on suspicion, but must be supported by a preponderance of the evidence sufficient to reasonably satisfy the mind, and any reasonable doubt should be resolved in favor of innocence. Redpath v. Lawrence, 48 Mo. App. 27; Gray v. Gilliland, 92 Mo. 250; Bauer v. Sanders, 74 Mo. App. 657; Dallam v. Renshaw, 26 Mo. 533; Hitchcock v. Baughan, 36 Mo. App. 216; Bryan v. Hitchcock, 43 Mo. 527; Waddingham v. Loker, 44 Mo. 132; Shinnabarger y. Shelton, 41 Mo. App. 147; Weissenfels v. Cable, 208 Mo. 515.
   RAILEY, C.

Plaintiffs, Robert L. Martin and wife, brought this action in the Circuit Court of Lincoln County, Missouri, on July 14, 1917. It was transferred on change to venue to Montgomery County, and tried there. They sought to reform and correct a deed made by Porter Jones and wife to them for certain lands located in Lincoln County. They also sought to reform and correct a deed, in respect to the same land, from Gladney to Jones; and also to reform and correct a deed as to same land from Briscoe to Gladney.

It is alleged, and the undisputed facts disclose, that each of the three deeds above mentioned, through mistake and oversight, failed to convey the southeast quarter of Lot No. 2 of the northeast quarter of Section 4, Township 49, Range 2, east; in Lincoln County, Missouri, which should have been contained therein. Plaintiffs likewise sought to recover from Jones the reasonable value of forty acres of land, which they claim to have bought from Jones and which he failed to convey and deliver to them.

Jones denied plaintiffs’ right of recovery, admitted that the above land in Lot 2 should have been inserted in his deed to plaintiffs and, by way of answer to plaintiffs ’ case, alleged that the land hereafter mentioned in Lot 1 of the northwest quarter of Section 3, contained in his deed to plaintiffs, was inserted therein through mutual mistake, and asks that said deed he corrected so as to exclude said forty acres. The answer of Jones also contained a cross-bill against defendants Gladney, in which he seeks to recover from Gladney the reasonable value of forty acres of land which he claims to have bought from Gladney, and which the latter did not convey and deliver to him.

Gladney answered plaintiffs ’ case, and admitted that his deed to Jones should contain the southeast quarter of Lot No. 2 of the northeast quarter of Section 4 aforesaid, which was omitted therefrom through mutual mistake. He also alleged that in his deed to Jones, through mutual mistake, the west half of Lot 1 of the northwest quarter of Section 3, Township 49, Range 2, east, was erroneously inserted therein, and prays for the reformation of said deed by striking therefrom said forty acre tract.

The trial court reformed and corrected the respective deeds from Briscoe to Gladney, from Gladney to Jones, and from the latter to plaintiffs, so as to have the same contain the southeast quarter of Lot No. 2 of the northeast quarter of Section 4 aforesaid. It was conceded by all the parties that this correction should be made.

The trial court allowed a correction of the deed from Jones to plaintiffs by striking therefrom the forty acres in Lot 1 aforesaid, and refused to allow plaintiffs any damages on account of the failure of Jones to convey to them forty acres which they claim to have purchased and paid for, but did not get. From this branch of the case plaintiffs appealed to this court.

The trial court, in its decree, permitted a correction of the deed from Gladney to Jones, so as to strike therefrom the forty acres in Lot 1 aforesaid, and refused to give Jones a judgment against Gladney for forty acres which he claimed to have bought and paid for, but did not get. From this branch of the case, Jones appealed.

The case is pending in this court upon the cross-appeals of plaintiffs and Jones, as shown by the records in docket numbers 21,171 and 21,172. Both cases have been consolidated, and will be disposed of as a single-case.

In order to avoid repetition, we will consider the remainder of the case in the opinion.

I.' This is a proceeding in equity, brought by plaintiffs against all of the defendants, to qniet and perfect their title, by the reformation and correction of a deed from George W. Briscoe and wife to William A. Gladney, and to reform and correct a deed from William A. Gladney and wife to Porter Jones, and to reform and correct a deed from Porter Jones and wife to plaintiffs. In each of the three deeds just mentioned, the grantors therein intended to convey, and contracted to convey, to their respective grantees, the southeast quarter of Lot No. 2 of the northeast quarter of Section 4, in Township 49, Range 2, east, in Lincoln County, Missouri, hut, through oversight and mutual mistake, each of said deeds failed to describe and include the land supra, which should have been included therein. The above land is described in some portions of the record a's the south half of-east half of Lot No. 2 of the northeast quarter of Section 4, aforesaid, but both descriptions cover the same land. It is conceded, by all the parties to this action, that the above deeds should be reformed and corrected, so that each should contain the land above described.

The trial court reformed and corrected said deeds as above indicated, and its ruling and decision in respect to said matter is hereby approved.

II. Plaintiffs allege, and the evidence shows, that they contracted to purchase from Porter Jones, 180.40 acres of land in Lincoln County, for the agreed consideration of $5,500, which was paid to Jones by the 'execution and delivery' to him of a deed to 160 acres land in Lincoln County, described as follows: -All of the southwest quarter of Section 14, in Township 48, of Range 2, west; and also by the payment to Jones of $1,500 in cash. It further appears from the evidence that Jones and wife, on January 6, 1917, executed and delivered to plaintiffs a warranty deed, with general covenants of warranty, and attempted to convey therein 180.40 acres of land in Lincoln County, to plaintiffs, for the expressed consideration of $6,000, but for the actual consideration of $5,500, as heretofore stated. We find from the evidence that by the evidence to make of this an exceptional case. possession was delivered to plaintiffs of all the land described in said deed, including the southeast quarter of Lot No. 2 of the northeast quarter of Section 4, in Township 49, of Range 2, east, in Lincoln County, except the west half of Lot No. one (1) of the northwest quarter of Section 3, in Township 49, of Range 2, east, in said county, containing 40 acres of land, which said Jones and wife did not own, and to which they had no title. In other words, we find from the evidence, that under the written contract between plaintiffs and Jones, read in evidence and described in the petition, and by the terms of the warranty deed from Jones and wife to plaih-tiffs, the latter paid Jones for 40 acres of land which he did not convey or deliver to them.

We are of the opinion from the evidence before us that plaintiffs are entitled to recover, under the contract and warranty deed aforesaid, the reasonable value of the forty acres they did not receive, which we find from the evidence is $1,222.20, and which should bear interest at the rate of six per cent per annum from January 6, 1917, until paid; and which said sum of $1,222.20, with interest as aforesaid, should be declared a lien on the 160 acres aforesaid, conveyed by plaintiffs to Jones, subject to the deed of trust on said land made, by Jones and wife in January, 1917, to Charles Martin, as trustee for George McGregor. , -

III. Defendants Jones and wife, in their answer and cross-bill allege, and the evidence shows, that they did not own the west half of Lot 1 of the northwest quarter of Section 3, Township 49, Range east, as aforesaid; that through mutual mistake said land was described in the deed from Jones and wife to plaintiffs aforesaid, when it should not have been included therein.

Having' required defendant Jones to pay the damages aforesaid for the loss of forty acres which he did not convey to plaintiffs, as required by the contract and deed aforesaid, the warranty deed from Jones and wife to plaintiffs, Rearing date, January 6,1917, should stand reformed and be corrected, so that the west half of Lot No. 1 of the northwest quarter of Section 3 aforesaid, shall bo excluded therefrom, upon the payment of the judgment to plaintiffs aforesaid.

The foregoing disposes of the controversy between plaintiffs on the one hand, and defendants Jones and wife on the other. We will next proceed to consider the controversies, between defendants Jones and wife, and Win. A. Gladney and wife.

IY. Defendants Gladney and wife challenge the jurisdiction of the circuit court, and incidentally of this court, to determine in this action, the ques-^ion as 'whether Jones and wife can recover from Gladney the reasonable value of the forty acres which Jones bought, and which Gladney failed to deliver and convey to him.

In considering the question of jurisdiction, we find, that plaintiffs sued Gladney, as well as Jones, for the purpose of having the deeds from Gladney to Jones, and from the latter to plaintiffs, reformed and corrected so as to include the southeast quarter of Lot No. 2 of the northeast quarter of Section 4, Township 49, Range 2, east, aforesaid. The circuit court, therefore, upon the appearance of Gladneys, and Jones and wife, to plaintiffs’ action, acquired jurisdiction over the persons of Gladneys and Jones. It had likewise jurisdiction over the subject-matter of the action, and jurisdiction over the respective deeds aforesaid from Gladney and Jones, in order to grant plaintiffs the relief prayed for as aforesaid. Jones answered plaintiffs’ case by confessing the mistake made in his deed to plaintiffs as to the southeast quarter of Lot 2 of the northeast quarter of Section 4, aforesaid, which should have been included therein. In answer to the plaintiffs’ case, Jones asked the court to correct the deed which he and wife made to plaintiffs, so as to strike therefrom the west half of Lot No. 1 of the northwest quarter of Section 3 aforesaid. The court had before it the consideration of this same deed, as a part of plaintiffs’ case. With matters in this shape, on December 7, 1917, defendant Gladney entered a general appearance to plaintiffs’ action, and confessed therein that the deed ■which he made to Jones should be reformed and corrected so as to include said southeast quarter of Lot No. 2, of the northeast quarter of Section 4 aforesaid. So, that, the court of chancery had before it, as part of plaintiffs’ case, the deed from Gladney to Jones and the deed from the latter to plaintiffs. It had jurisdiction at that time, as part of plaintiffs’ case, over the persons of both Gladney and Jones.,

On September 13, 1917, defendant Jones filed an amended answer and cross-bill herein. The first part of said answer related to the issues heretofore considered between plaintiffs and Jones. The balance of said answer and cross-bill is a demand pf Jones against Glad-ney for damag’es which he sustained on the covenants of warranty in Gladney’s deed to him, which was the. same conveyance involved in plaintiffs’ case against all the defendants. In short, Jones, in said cross-bill, sought the same kind of a judgment against Gladney that plaintiffs sought to have rendered against him (Jones), and contended that, in case plaintiffs should succeed, the judgment rendered in his behalf should be declared a lien on the lands of Gladney mentioned said cross-bill.

On November 30, 1917, defendant Gladney appeared specially in his plea in abatement, and contended therein that no process had been served on him in respect to the cross-bill of Jones, and that by reason thereof the court acquired no jurisdiction over his person, etc. This plea was overruled by the court, and leave given Gladney to plead to Jones’s cross-bill on or before December 8, 1917. On the latter date, Gladney demurred to said cross-bill, and alleged eleven grounds of demurrer. On December 11, 1917, said demurrer was overruled and, bn the same day, leave was given Gladney to answer said cross-bill on or before December 12, 1917. On December 12, 1917, Gladney applied for a change of venue, and the cause was transferred to Montgomery County. On December 12, 1917, defendant Gladney filed his plea in abatement to said cross-bill, the same having been filed before the granting of said change of venue. On February 21, 1917, Gladney filed an answer and plea in abatement to the cross-bill aforesaid.

The plea in abatement to the jurisdiction of the court over his person was substantially the same as that overruled by the Circuit Court of Lincoln County. The remainder of said plea is an answer to the cross-bill of Jones. In said answer he admits that the southeast quarter of Lot No. 2 of the northeast quarter of Section 4 aforesaid was intended to be inserted in his deed to Jones, as .contended for by plaintiffs and Jones, and that the same was left out of his deed through mutual mistake, etc. He likewise pleads in his answer that his deed to Jones should be reformed and corrected so as to exclude therefrom the west half of Lot No. 1 of the northwest quarter of Section 3 aforesaid, as the same was included therein through mutual mistake, etc. He concludes his answer to said cross-bill of Jones, by asking the court to reform and correct the deed which he made to Jones, in respect to both the above matters.

We have set out at length the foregoing proceedings, in order to determine whether or not the court acquired jurisdiction over the person of defendant Glad-ney, in respect to the subject-matter of the cross-bill filed by defendant Jones aforesaid. We have before us, as a court of equity, plaintiffs, Gladney and Jones, all asking that the deeds from Gladney to Jones, and from the latter to plaintiffs, be reformed and corrected. Jones, in his cross-bill, as a condition precedent to relief being granted Gladney, as to the west half of said Lot 1, contends, that the court should require him to respond in damages, for the 40 acres he agreed to convey and deliver to Jones, but failed to convey and deliver, in lieu of that 40 which he asks to have excluded from said deed, on account of the alleged mutual mistake, etc. We are fully satisfied from the facts aforesaid, that the trial court acquired Jurisdiction. over the person of Gladney, not only as to the subject-matter of said cross-bill, but that it had jurisdiction to settle and adjust all the matters in dispute, between plaintiffs, Gladney and Jones, with respect to the conveyances from Gladney to Jones and from the latter to plaintiffs, etc.

The principle underlying this- class of cases, is very clearly and forcefully stated by Sherwood, J., in the leading case of Real Estate Saving Inst. v. Collonious, 63 Mo. l. c. 295, as follows:

“The court had the subject-matter of .the suit within its grasp; had jurisdiction of that and likewise of the parties; and the doctrine is too well settled to admit of either discussion or dispute, that when a court of equity once acquires jurisdiction of a cause it will not relax its grasp upon the res until it shall have avoided a multiplicity of suits by doing full, adequate and complete justice between the parties. It will not content itself in this regard by any half way measures; it will not declare that a party has been defrauded of his rights and then dismiss him with a bland permission to assert, at new cost and further delay, those rights in another forum.” To same effect are: Hess W. & V. Co. v. Burlington Grain E. Co., 280 Mo. 163; Oldham v. Wade, 273 Mo. l. c. 254, 200 S. W. 1053; Frazier v. Crook, 204 S. W. l. c. 394; Huggins v. Davidson, 202 S. W. l. c. 400; Woolum v. Tarpley, 196 S. W. l. c. 1128-9; McAllister v. St. J. St. Const. Co., 181 S. W. l. c. 58.

We have carefully examined and considered the case of Fulton v. Fisher, 239 Mo. 116, 133, cited by counsel for Gladney, as well as the other cases referred to in the brief, along the same lines. The Missouri cases referred to can be clearly distinguished from those at bar. We are satisfied, however, upon both principle and authority, as to the conclusion heretofore reached.

The plaintiffs, in their petition, among other things, pray, that the title to the real estate in controversy may be quieted in them. Both Gladney and Jones, in their respective answers, ask for general relief.

Section 2535, Revised Statutes 1909, reads as follows :

“Any person claiming any title, estate or interest in real property, whether the same he legal or equitable, certain or contingent, present or in reversion, or remainder, whether in possession or not, may institute an action against any person or persons having or claiming to have any title, estate or interest in such property, whether in possession or not, to ascertain and determine the estate, title and interest of said parties, respectively, in such real estate, and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real property. And upon the trial of such cause, if the same be asked for in the pleadings of either party, the court may hear and finally determine any and-all rights, claims, interests, liens and demands whatsoever of the parties, or of any one of them, concerning or affecting said real property, and may award full and complete relief, whether legal or equitable, to the several parties, and to each of them, as fully and with the same force and effect as the court might or could in any other or different action brought by the parties, or any one of them, to enforce any such right, claim, interest, lien or demand, and the judgment or decree of the court when so rendered shall be as effectual between the parties thereto as if rendered in any other, different or separate action prosecuted therefor.”

Considered, therefore, as an equitable action, in which the titles to certain real estate are to he settled and determined, the broad provisions of the above statute contemplate that all the matters aforesaid, may be determined in the present action. We -will accordingly proceed to a consideration of the controversy between Jones and Gladney, as presented in the record.

Y. There m some conflict between the testimony offered by Jones and Gladney, in respect to the trade between them. After carefully reading the evidence before us, we are of the opinion that Gladney took Jones upon the land he was proposing to trade him; that he represented it contained 180.40 acres; that Jones was then ignorant of the number of acres contained in the tract pointed out by Gladney; that he believed the statements of the latter as to said number of acres were true, and relied thereon; that the land actually shown Jones was 140 acres; that Gladney agreed to, and did, make a warranty deed to Jones for 180.40 acres more or less, containing general covenants of warranty; that said deed called for the west half of Lot No. 1 of the northwest quarter of Section 3 aforesaid, containing forty acres, which Gladney did not own, and which he had previously sold to Cannon; that possession of the land above conveyed, except said last-mentioned forty acres, was delivered to Jones; that Gladney failed to convey and deliver to Jones forty acres of the 180.40 acres, which he agreed to sell and convey to Jones, and which was paid for by the latter in the deal between them; that by reason of the foregoing, Gladney became liable on his covenants of warranty, to either Jones or plaintiffs, for the value of the forty acres which he wrongfully included in said deed, which we find to be $1,222.20.

It is contended by Gladney that the right of action, if any existed, on the covenants of warranty contained in his deed to Jones passed to plaintiffs by the conveyance from Jones to the latter. It may be conceded for the purposes of the case that the above is true as a general proposition of law. [Allen v. Kennedy, 91 Mo. 324; Johnson v. Johnson, 170 Mo. 34; Crosby v. Evans, 281 Mo. 202, 219 S. W. 948, l. c. 952; 7 Ruling Case Law, sec. 37, p. 1122.] In this case, however, plaintiffs, under the above authorities, had the legal right to sue Gladney direct, on his covenants of warranty to Jones, or to sue the latter on the covenants contained in the deed from Jones to them. They saw fit to proceed against Jones, in order to obtain a lien on the land which, they sold Jones for the amount recovered. We have sustained their right of recovery against Jones as aforesaid, and Pave held that they are entitled to a lien on the land they traded to Jones to secure same.

If, within fifteen days from tPe date of tPe filing' of tPe mandate of tliis court Perein, with tPe clerk of tPe Circuit Court of Montgomery County, tPe defendant Gladney sPall pay or cause to be paid the $1,222.20 and interest as aforesaid, due plaintiffs from Jones, tPen, 'as a part of tPe decree in tPe re-trial of tPis cause, tPe deed from Gladney to Jones Peretofore mentioned sPall be reformed and corrected so as to exclude therefrom tPe west Palf of Lot No. l of tPe northwest quarter of Section 3 aforesaid, and no judgment shall then be entered in favor of Jones for damages against said Gladney. If, on the other hand, defendant Gladney does not pay or cause to be paid the debt due plaintiffs, as aforesaid, within the time aforesaid, then said Jones, on the payment of plaintiffs’ judgment aforesaid against him, shall be subrogated to the rights of plaintiffs; shall be entitled to a judgment against defendant Gladney for the amount thus paid, and shall be given a lien on Gladney’s land to secure same. On payment of the latter judgment, should it be entered, or on payment to Jones of the amount he may have paid to plaintiffs in extinguishing their debt, defendant Gladney shall be entitled to have entered, as a part of the decree in the cause, a reformation and correction of his deed to Jones so as to exclude said forty acres in Lot No. 1 aforesaid.

We accordingly reverse and remand the cause, with directions to the trial court to set aside its decree heretofore entered, and to enter a new decree in conformity to the views heretofore expressed, granting to either party a reasonable indulgence as to time, if necessary, in disposing of the case.'

Mosley and White, GO., concur.

PER CURIAM:

The foregoing opinion of Railey, C., is hereby' adopted as the opinion of the court.

All of the judges concur.