source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    SEIBERT et al., Appellants, v. HATCHER et al.
    Division Two,
    June 11, 1907.
    1. WILL CONTEST: Undue Influence: Confidential Relation. An instruction that requires the undue influence that is sufficient to avoid the will to amount to over-persuasion, coercion or force, is. not inapplicable in a suit to set aside the will of a very old person, which gave the bulk of her property to her attending physician and nurse, when taken in connection with other instructions which told the jury that a will in behalf of persons standing in a confidential relation to testatrix is presumed in law to have been made under undue influence that . must be overcome by proof, etc.
    2. -: Statements of Testator. Declarations made by testatrix, either before or after the making of the will, are admissible only as tending to show her mental capacity or the state of her feelings. It was not, therefore, error to refuse to permit" a witness to testify as to what testatrix said about her moving from one town to another two years before her death and why she came to locate in the town where lived a principal beneficiary, a physician.
    3. -: Admissions of Legatee. What one of the legatees said about the property of testatrix, in the absence of the other legatees, is incompetent.
    4. -: -: No Tender of Proof. Where contestants of the will ásk a witness what certain of the legatees said about testator’s property and the court refuses to permit the witness to answer, they should go further, if they assign the ruling for review, and show what they propose to prove, in order that the court may determine whether, or not it was material.
    5. -: Statements Made to Legatee: Feeling Towards Relatives. It is competent to permit a legatee, testator’s nurse, to state declarations or statements of testatrix as to why she left the abode of a relative and built a house for herself, and as to misunderstandings between her and such relatives. That testimony is admissible as tending to show that testatrix’s change . of feeling towards her relatives was not brought about by such • legatee, nor by anything she had said or done, but by indifference manifested by her relatives toward testatrix; and as it was offered to rebut prior testimony by testatrix’s relatives that the said legatee had poisoned testatrix’s mind towards them, it was both competent and pertinent.

      6. -: Nurse and Physician: Undue Influence. Testatrix was in full possession of her mental faculties at the time her will was exécuted and at the time she dictated its terms, and she knew the objects of her bounty, although she was eighty years of age. She had for many years been an invalid, and having no children and becoming estranged from her nieces and nephews, had left their abode, built a small house for herself, and for twelve years had been attended by a faithful nurse, an unmarried young woman, and by an attentive physician, to whom she gave three thousand dollars, each, and the residue of her estate to her relatives, naming them all. Her relatives had shown her very little kindness or attention prior to the execution of the will. She had become attached to the physician and nurse, and there is nothing to indicate that either by persuasion or otherwise they induced her to make legacies to them. Held, first, that kindness and affection are not regarded as undue influence; second, it is not strange that she gave a portion of her estate to the physician and nurse; and, third, the will should be upheld.
    Appeal from Perry Circuit Court. — Now. Robert A. Anthony, Judge.
    Affirmed.

      Ed. Robb and W. H. Miller for appellants.
    Under the law and the evidence the verdict should have been for plaintiffs. Meek & Thornton, Exrs., v. Perry, 36 Miss. 245; Page on Wills, sec. 414; Hoope’s Estate, 174 Pa. St. 195; Hartman v. Stricklin, 82 Va. 238; Taylor v. Wilburn, 20 Mo. 306; Harvey v. Sullens, 46 Mo. 153; Dingman v. Romine, 141 Mo. 466; Smith v. Henline, 174 111. 198; Rich v. Gilkey, 73 Me. 596. The case being one where a confidential relation was shown to exist and the burden of proof being on the proponents, instruction 4 for proponents, which required the jury to find that the undue influence to avoid the will must amount to overpersuasion, coercion or force, and that nothing short of that was sufficient, was erroneous and misleading. 1 Underhill on Wills, sec. 125 and sec. 152 and note 1; Higginbotham v. Higginbotham, 106 Ala. 314; Gay v. Gillilan, 92 Mo. 261.; Dingman v. Eomine, 141 Mo. 474. The court erred in admitting evidence over the objection of plaintiffs and excluding evidence offered by them. Thompson v. Ish, 99 Mo. 160; Hughes v. Eader, 183 Mo. 630; Gordon v. Burris, 141 Mo. 602; Yon DeYeld v. Judy, 143 Mo. 368; Wall v. Dimmitt, 72 S. W. 300; 1 Underhill on Wills, sec. 163; Milton v. Hunter, 76 Ky. 163; Jackson v. Hardin, 83 Mo. 186; Armstrong v. Farrar, 8 Mo'. 451; 29 Am. and Eng. Ency. Law, 113; Page on Wills, sec. 425; Coghill v. Kennedy, 119 Ala. 641; Eobinson v. Eobinson, 203 Pa. St. 437; Langford’s Estate, 108 Cal. 608; Crocker v. Chase, 57 Yt. 419; Higginbotham v. Higginbotham, 106 Ala. 314; Miller’s Estate, 179 Pa. St. 645; Penett v. Penett, 184 Pa. St. 131; Wallis v.Luhring, 134 Ind. 477.

      Jolm V. Noell and Wilson Cramer for respondents.
    (1) Instruction 4 given by the court at the request of proponents, declares the law as to what it takes to constitute undue influence, as it has been repeatedly declared by the Supreme Court of this State. Lorts v. Wash, 175 Mo. 505; Jackson v. Hardin, 83 Mo. 185; Dausman v. Eankin, 189 Mo. 703; Carl v. Gabel, 120 Mo. 296; McFadin v. Catron, 138 Mo. 219; Sehr v. Lindeman, 153 Mo. 289. (2) Instruction 6 given for defendants told the jury that the law presumed undue influence on the part of Dr. Hatcher and Miss Ella Statler until such presumption was overcome by proof rebutting the same; and instruction 1 given for plaintiffs told the jury that the burden of proof was on the defendants to show that at the time of the execution of the will the testatrix was of sound mind and memory, and that the will was not the result of undue influence. (3) Instruction 1, given on behalf of proponents, is sustained by Pratte v. Coffman, 33 ■ Mo. 71. (4) Instruction 2 on behalf of proponents is supported by Gordon v. Burris, 153 Mo. 223. (5) Instruction 3 is sustained by Gordon v. Burris, 153 Mo. , 231. (6) Instruction 5 is supported by the following cases: Bush v. Bush, 87 Mo. 480; Gibson v. Gibson, 24 Mo. 227; Jones v. Roberts, 37 Mo. App. 181; Rule v. Maupin, 84 Mo. 590 ; Spoonemore v. Cables, 66 Mo. ■579. (7) Appellants say that the trial court should have permitted J. H. Kiesler to testify as to what Dr. Hatcher, one of the proponents, said about Mrs. McLane’s property. What they complain of is, that the trial court sustained an objection to the following question propounded to this witness by counsel for contestants: “Before the making of this will which you witnessed, did you have any talk with Dr. Hatcher about Mrs. McLane’s property?” In the first place, the court was justified in sustaining the objection to ' this question on the ground that the statements or admissions of one legatee made in the absence of the other legatees are inadmissible in a will contest. ■ Schierbaum v. Schemme, 157 Mo. 17; Yon De Yeld v. Judy, 143 Mo. 368; Underhill bn Ev., sec. 67; 1 Greenl. .Ev. (14 Ed.), sec. 174; Freeman on Cotenancy and Part. (2 Ed.), sec. 169; 9 Am. and Eng. Ency. Law, . 343;. 11 lb. 157; Thompson v. Thompson, 13 Ohio St. 356; O’Connor v. Madison, 57 N. W. 107. In the next 'place, the question was vague, general and indefinite, both as to time and the subject-matter of the question. ‘ The question fixes the time as before the making of the • will, but does not say how long before; neither is the question limited to property bequeathed by the will, nor ' does it say what property. (8) Threats and previous ■ difficulties between a witness and a party to a suit are "admissible as tending to prove ill-feeling and bias of the witness against such party and thereby lessening the credibility of such witness. State v. Jones, 106 Mo. 302; People v. Brooks, 30 N. E. 189; Schultz v. Railroad, 89 N. Y. 242; Gale v. Railroad, 76 N. Y. 594; Tucker v. Welsh, 17 Mass. 160; Martin v. Barnes, 7 Wis. 239; Stewart v. Kindel, 25 Pac. 990; State v. Dee, 14 Minn. 35; State v. Collins, 33 Kan. 77.
   BURGESS, J.

This is a statutory proceeding to contest and set aside the last will of Emeline McLane, who died on the 26th day of October, 1903, the will having been executed on the 21st day of the preceding1 January.

Plaintiffs are the collateral kindred and the residuary legatees under the will of the testatrix. The petition, after averring the execution and probate of the will in question, alleges:

“That by the terms of said pretended will William H. Hatcher is made the beneficiary to the amount of three thousand dollars; and that Ella M. Statler is made a beneficiary therein to the amount of three thousand dollars; that neither William H. Hatcher nor Ella M. Statler was of kin to the said Emeline McLane, deceased.

“Plaintiffs now charge that át the time of making said- will, to-wit, January 21, 1903, the said Emeline McLane was very old, being more than eighty years of age, and was in feeble health, as well as in a feeble state of mind; that she had been sick and bed-ridden for a number of years prior to the execution of the said pretended will; that she had not sufficient mental capacity to make and execute a will as provided by law; that by reason of her extreme old age, bedridden condition, feeble health and mental condition she was easily imposed upon and influenced; that said will, as .prepared and admitted to probate, is not in fact the will of said Emeline McLane, deceased, but was produced and brought about and caused to be executed by the undue influence and over-persuasion of the said William H. Hatcher and Ella M. Statler, the former being the physician in charge and the latter the nurse, one or the other, or both of them, who used their influence for the purpose of procuring the execution of said will with a view of making themselves beneficiaries therein to the exclusion of those who were close of kin and entitled as a matter of law to hold said property.

*1 So these plaintiffs charge that the writing which was probated as and for the last will and testament of the said Emeline McLane was not in fact her will.”

The answer alleges affirmatively that the testatrix was of sound and disposing mind and memory, and denies that the execution of the will was procured by the exercise of undue influence or over-persuasion of defendants.

The will in question sought to be annulled and set aside, is as follows:

“Know all men by these presents: That I, Emeline McLane, of the county of Perry and State of Missouri, being feeble of body, but of sound and disposing mind and memory, do hereby make, publish and declare this to be my last will and testament.

“I. It is my last will and desire that after my death all my just debts, including funeral expenses, be paid out of my estate.

“II. As a token of my friendship and esteem for William H. Hatcher, M. D., of Perryville, Missouri, and by way of grateful appreciation of the services rendered and kindness shown me by him in the past, I hereby give him and bequeath to him three thousand dollars, which I require the executor of my estate to pay him as soon as practicable after my death.

“in. I give and bequeath to my beloved grandniece by marriage, Ella M. Statler, of Perry county, Mo., three thousand dollars, which I require my executor to pay to her as soon as practicable after payment of the above mentioned legacy to William H. Hatcher.

“IV. I give and bequeath all the rest and residue of my estate, real, personal and mixed, to the following named beloved relatives of myself and my deceased husband, to be equally divided between them, share and share alike, to-wit: Mattison Price, Otho Price, Richard B. Price, Thomas F. Price, Joseph O. Price, William H. Seibert, Eulilie Hamilton, George A. McLane, Alpha Dudenbostel, and the two surviving children of Henry A. Price, deceased, Blanche Price and Harry Price, said two children to have jointly one share of my estate, equal to that given in this, the fourth clause of my will, to each of the persons mentioned in this clause, prior to the mention of said children.

“V. I hereby nominate and appoint the public administrator of Perry county, Mo., whoever he may be at the time of my death, to be the executor of this my last will and testament.

“VT. I hereby expressly revoke any and all wills heretofore made by me.

“In witness whereof I hereunto set my hand and seal this 21st day of January, A. D. 1903.

“Emelins McLane. (Seal.)

“We attest the above and foregoing will, by subscribing our names hereto as witnesses in the presence of Em el In e McLane, the testatrix,, this 21st day of January, A. D. 1903.

“John H. Kiesleb,

Wm. A. Difani.”

A trial by jury of the issues resulted in the following verdict:

“We, the jury, find the writing produced in evidence is the last will and testament of Emeline McLane, deceased.”

The judgment of the court accorded with the verdict, from which judgment, after an unavailing motion for a new trial, plaintiffs appeal.

The testatrix, Emeline McLane, was a childless widow, about eighty-four years of age at the time of her death on October 26, 1903. Prior to 1891 she lived with her relatives in the country, first with one, and then with another. The last relative with or near whom she lived was her nephew, Otho Price, to whose house she built an addition, and lived there. Becoming dissatisfied, she built a house in the village of Brazeau, in Perry county, and established a home of her own, where she was living in the year 1891. She was then about seventy-one-years of age, and had for some time been a cripple, suffering from caries of the bone in one of her knees, which caused her limb to be drawn up so that she could not walk, but was otherwise in good health. Her infirmity made it necessary that she have a constant attendant, and, after trying several girls, she employed the defendant, Ella Staffer, a distant relative by marriage, who went to live with her as housekeeper and nurse on the 1st day of October, 1891, she being then twenty-four years of age, and remained with her continuously up to- the old lady’s death in 1903, or for a period of about twelve years.

In 1892, the defendant Wm. H. Hatcher, who had just begun the practice of medicine, located at Brazeau, to practice his profession, and continued for some time to be the only physician in the neighborhood. During the fall of that year he called to see Mrs. McLane, professionally, and continued from that time on to be her attending physician until he sold out his practice to Dr. Seibert, a young physician who came there about 1901. Dr. Hatcher, before leaving, took Dr. Seibert to the residence of Mrs. McLane, and introduced him to her as his successor in the practice. After practicing at another place for a little time, the defendant Hatcher located at Perryville, the county seat, to practice his profession. Some time after he left Brazeau, Mrs. McLane, who was unwilling to submit to treatment at the hands of the young, inexperienced physician at that place, concluded to move to Perryville, where she might have the assistance of experienced and competent physicians, not knowing at the time that Dr. Hatcher contemplated locating there. After establishing a home at Perryville, she again had Dr. Hatcher to attend to her ailment, and he continued to be her physician during the remainder of her life.

There was abundant evidence to' the effect that the testatrix was a woman of strong character and mentality, thoroughly competent to attend to her own business affairs. Of the numerous witnesses introduced by the contestants, there was but one, Benjamin Knox, who intimated that Mrs. McLane was “childish.” He said, “I don’t pretend to say that she was childish so that she didn’t control herself; she was of a childish disposition when things didn’t go right.” The witness evaded every question by which it was attempted to elicit from him any information or opinion relative to Mrs. McLane’s ability and competency to attend to her business affairs.

Defendant’s witness John H. Kiesler, a banker of Perryville, who was one of the witnesses to the will, testified that the will was reád twice in his presence^ before it was signed. Part of his testimony, in narrative form, is as follows:

“When the will was read the second time, Mrs. McLane nodded her head at the different provisions, and said it was as she wanted it....., Mr. Difani and I signed our names to the will in the presence of Mrs. McLane, and we both saw her sign the will. I thought Mrs. McLane’s mind was all right at that time. Before Mr. Difani came she talked about her trip from North Carolina to Perry county when, she was a girl, and her mind seemed clear. I had known her for about ten years before that. I had done her insurance business. I always thought she was all right in her mind. She was clear-headed and her memory was good; she remembered me although I hadn’t seen her but perhaps in a year or so between times. I don’t think her mind at the time of making this will was a bit less clear than it had always been. The business she had with me she attended to herself. ’ ’ Witness testified that Dr, Hatch-er was not present at the time the will was made or signed, but he said that Ella Statler was present the first time the will was read. He further testified: “After I witnessed the will Mrs. McLane was talking about the will being made, and that she left most of it to Dr. Hatcher and Miss Statler. She said that her relatives hadn’t treated her right; that was why she was giving it to Miss Statler and Dr. Hatcher. This was after the will was executed. She did not intimate in what way her relatives mistreated her, only she said that Otho Price had tried to get her to send Miss Statler away, and that she wouldn’t know what to do without her, she missed her.”

Wm. A. Difani, the other witness to the will, testified that he was the assessor of Perry county; that in assessing Mrs. McLane’s property she always attended to the matter herself, in a business-like way, and that she seemed to be an intelligent old lady. He said: “In regard to her business transactions, I think she was clear-headed and capable of attending to them. I didn’t see any difference in the condition of her mind the evening she made the will from what it had been at former times.”

John Y. Noell, the attorney who wrote the will of Mrs. McLane, and who was one of defendants’ counsel in the trial of this suit, testified as to the circumstances of hi's employment to write the will and the condition of the mind and memory of the testatrix at the time. He said: “I think she had a great deal more than the ordinary intelligence. Her memory was fine. .... I made a memorandum of what Mrs. McLane wanted to put in her will. I put down what she directed. "While Mrs. McLane was dictating what she wanted put in her will there was nobody in the room. Miss Statler met me at the door, and as soon as I got in there and sat down she retired, went into the back room and when the old lady told me what she wanted there was nobody in the room. Dr. Hatcher was not there at any time. Ella Statler was not in the room at any time when the old lady was dictating. After I had prepared the notes I read them over to the old lady, and she said, ‘That is just the way I want it.’ That evening before Mr. Difani arrived, I read the will over to her and asked her if that will represented just what she wanted, and she said that it did. We had some talk about the legatees and the distribution, of her property. She said that she wanted it divided equally, that is, the remainder. She spoke in terms of highest regard and esteem of Dr. Hatcher and Miss Ella Statler. She said that Dr. Hatcher had been her family physician for quite a long time, and that he had done her a great deal more good than any person — that Dr. Hatcher had been so kind to her, and had done some things that his professional duties didn’t call on him to do, and that Ella had virtually made a sacrifice of her life — had been with her twelve years — and that she had done more for her than her own child would have done, and she looked upon her and Dr. Hatcher as being her mainstays. The old lady seemed to be in good health at that time.”

Both Dr. Hatcher and Ella Statler testified as to their relations with the testatrix, and each disclaimed. having made any suggestion whatever to her respecting her will or as to what it should contain. Regarding the circumstances of the execution of the will, Dr. Hatcher testified as follows:

“Q. Now, then,, Doctor, I will ask you to state if you remember or know anything about the circumstances of Mrs. McLane having executed this will in controversy? A. I certainly do know it; I know it was executed. The first that I knew of the will, I was' up to see the old lady one morning, and after I had prescribed I was sitting talking to her, and she said, ‘Doctor, I have been thinking of making a will in favor of you and Ella,’ and I said, ‘Aunt, I don’t want to talk to you about this and I won’t discuss the matter with you,’ and right there it stopped. I had nothing to do-with it only as to the witnesses — seeing Mr. Noell and witnesses.

“ Q. I mean SO' far as the old lady’s mind was concerned; by way of suggesting what she should do? A. No, sir.

“Q. If you summoned Mr. Noell, state to the jury just what occurred and how you came to summon Mr. Noell. A. Three or four days after she had spoken to me about making this will I was talking with her and — anyway she discussed the matter, and — I don’t remember, it was a week, a week’s time — and she told me that she had decided to make that will and would like to — wanted to get a lawyer and wanted to know what I thought about the lawyer. I told her Mr. Noell, I thought, was a good lawyer. She asked me if I would see him and send him up. I told her I would, and that ended that conversation. ’ ’

It appears that some time prior to the making of the will in question the testatrix,had executed a will by which, according to the testimony of some of the witnesses, she bequeathed all her property to the relatives named as the residuary legatees in this will. As to the destruction, of the old will, witness Noell testified that after writing the last will of the testatrix, and the same evening it was executed, he asked her what should he done with the old will. “Mrs. McLane replied, ‘I don’t Imow.’ I said, ‘I guess it is no good; it had just as well be destroyed.’ She told Ella Statler to stick it in the stove and burn it up, and she did it in the presence of myself and the old lady.”-

- There was much testimony introduced by parties plaintiff and defendant respecting the testatrix’s state of feeling toward some of her relatives, her transactions with and treatment by them, from all of which it would appear that the old lady did not believe that she had been treated properly. Several witnesses testified as to a certain note for about two hundred dollars which she stated to them had been owing to her by Otho Price, and that after paying -part of the note he asked her for it one day in order to compute the interest thereon, and that he never afterwards returned it to her. The evidence also tended to show that she left the society of her relatives and moved to the village of Brazeau because she desired peace.

The evidence on the part of plaintiffs largely related to the antipathy of Ella Statler to certain relatives of testatrix, particularly Otho Price, and as to various gifts by the testatrix to Miss Statler, among which were a deed to her house at Brazeau, worth about six hundred dollars, and a note for seven hundred dollars owing by Miss Statler’s brother to Mrs. McLane. But there was little or no evidence tending to show, or from which it could be inferred, that either Miss Statler or Dr. Hatcher had or tried to exert any undue influence over the mind of the testatrix.

At the request of the proponents of the will, and over the objection and exception of the contestants, the court instructed the jury as follows:

‘ ‘ 1. The court instructs the jury that-, if they find from the evidence that Emeline McLane, the testatrix, signed the paper which has been offered in evidence in this cause as her last will and testament, and that John H. Kiesler and William A. Difani attested the same by subscribing their names thereto in the presence of the testatrix and at her request, and that the testatrix was at the time of sound and disposing mind, then the jury should find that said paper is her last will and testament, unless they shall further find that the execution 1 hereof was brought about by the exercise of undue influence.

“2. The words 'sound and disposing mind and memory,’ as used in these instructions, mean a mind sufficient to enable a testatrix to understand what business she was engaged in while she w'as making and executing a will; also to enable her to know who were the natural objects of her bounty; and her relation to them and what property she had and the disposition she desired to make of it. And if the jury shall find from the evidence that testatrix, Emeüne McLane, at the time she executed the instrument offered in evidence as her last will, had sufficient mind and memory to understand that she was engaged in making’ a will and knew what property she had, knew who her relatives were, and comprehended the claims that they had on her bounty and understood what disposition she wanted to make of her property, then she possessed a sound and disposing mind and memory, and sufficient capacity to make a valid will.

“3. The court instructs the jury that if the testatrix, at the time of the execution of the will in question in this case, had a sound and disposing mind, she had a right to dispose of her estate by will as she chose, even to the entire exclusion of those who but for the will would have been the heirs of her estate; and the question to be determined by the jury in this case is not whether or not the disposition of her estate made by the testatrix'in her will is appropriate or in the opinion of the jury jnst; but simply whether the paper propounded as her will be or be not the last will and testament of the testatrix.

“4. The words ‘undue influence’ as used in these instructions mean such influence as amount to over-persuasion, coercion or force,' ovérpowéring’ and destroying the free agency and will-power of the person upon whom it is used, and no amount of influence or advice or persuasion which comes short of such effect will amount to undue influence.. The mere influence of affection or attachment or the desire of gratifying the wishes of one beloved, respected and trusted by the testator, does not constitute undue influence within the meaning of the law.

“Hence,, even if the jury believe from the evidence that co-defendants, William H. Hatcher and Ella M. Statler, or either of them at and prior to the time of the execution of the will in question, exercised an influence over the testatrix whereby she was induced to dispose of her estate in the manner she did in her will, yet if the jury believe from the evidence that such influence was gained over the testatrix by kindness and friendly attention to her, and that it was exercised solely as a persuasive inducement to the making of the said will and the disposition of her property and not in such a way as to destroy her freedom of will’ to such extent that she could not exercise it in accordance with her own judgment, .and that she was not thereby constrained to make a will and to make such a disposition of her property as was against her actual will, then such influence so exercised is not in contemplation of law undue influence, and is insufficient to invalidate said will.

“5. The court instructs the jury that any and all of the declarations made by the testatrix, Emeline McLane, both before and after the execution of the will in question in this case, are only admissible as evidence of the condition of the mind and affections of the testatrix at the time they were made, and cannot be considered by the jury as proving or tending to prove the truth or the facts stated in such declarations.

“6. The court instructs the jury that a will in fav- or of persons standing in close confidential relations to the testator is presumed in law to have been made under undue influence exercised by such beneficiaries, but. that this presumption of law may be rebutted and overcome by proof; and if the jury shall be satisfied from the evidence in this cause that neither Dr. Wm. H. Hatcher, the attending physician, nor Ella Statler, the nurse, exercised an undue influence upon the testatrix, Emeline McLane, to induce her to dispose of her property as provided in the writing propounded as her will then the jury should find that said writing is the will of Emeline McLane. ’ ’

On behalf of the contestants, and over the objection and exception of the proponents, the court gave the following instructions:

“1. The jury are instructed that when a will is made in favor of one’s physician or nurse to the total or partial exclusion of the lawful heirs, the burden of proof is on the defendant to. show that the deceased was of sound mind and memory at the time of the execution of the will, and that it was not the result of undue influence. You are therefore instructed in this case that, if from the evidence you find and believe that defendant, “William H. Hatcher, was the attending physician, and the defendant, Ella Statler, was the nurse of deceased, Emeline McLane, and that one or the other or both of them had occupied this position for a number of years immediately prior to her death, and that each of them is a large beneficiary of the will of Emeline McLane, deceased, then the law presumes that said will was procured by undue influence exercised by defendants over the mind of the testator, and unless they have disproved such influence by a preponderance of the evidence your verdict will be that the writing offered in evidence is not the last will and testament of said Emeline McLane, deceased.

“2. The court instructs the jury that fraud and undue influence need not be proven by direct and positive proof, but it may be established by facts and circumstances inconsistent with honesty and fair dealing, and in this case you are instructed that, if from' all of the facts and circumstances in evidence, you believe and find that said will of Emeline McLane, deceased, was procured by undue influence exercised over her by either one or both of the defendants then your finding will be that the paper introduced is not the last will and testament of the deceased. In determining whether or not the said writing was procured by undue influence you should take into consideration all the facts and circumstances proven in this case, togéther with the relation of the parties to each other as well as the age, physical and mental condition of the testatrix.

“3. The court instructs the jury that you are the sole judges of the credibility of witnesses and the weight to be given to their testimony and in determining the weight you will attach to any witness’s testimony, you should take into consideration his or her interest, if any, in the result of the suit, his or her relation to the parties in in-, terest, his or her demeanor on the witness stand, together with the probability or improbability of the statements made, and in this connection you are instructed that if you believe any witness has willfully sworn falsely to any material fact in issue, then and in that event you are at liberty to disregard any part or all of any such witness’s testimony.”

It is conceded by the contestants that the testatrix had mental capacity sufficient to satisfy the law for the purpose of the execution of her will; hut they claim that the condition of her mind should he considered in connection with other facts in the case as tending to show the probability of this will having been procured by the efforts of Dr. Hatcher or Miss Statler, or by their united efforts.

Plaintiffs complain of instruction number 4, given at the instance of the proponents of the will, and contend that it is erroneous and'misleading for the reason that, while the confidential relations which existed between the testatrix and Dr. Hatcher and Miss Statler raised the presumption of undue influence, which would be fatal to the will unless rebutted by proof of free deliberation and spontaneity on the part of the testatrix, and good faith on the part of these legatees, the instruction required that undue influence such as was necessary to- avoid the will must amount to over-persuasion, coercion or force, and that nothing short of that was sufficient. It is argued that, while the rule announced by the instruction might be correct as an abstract proposition of law, applicable to general conditions, yet, as applied to the facts and the situation of the parties in this case, it was erroneous and calculated to mislead the jury. We are unable to admit this contention, or to hold that the facts disclosed by the record removes this case from the operation of the rule announced generally, and especially by this court, in suits to set aside wills upon the ground of procurement by undue influence. [Jackson v. Hardin, 83 Mo. 175; Myers v. Hauger, 98 Mo. 433; Thompson v. Ish, 99 Mo. 160; Tibbe v. Kamp, 154 Mo. 545.] When this instruction is read in connection with instruction number 6 given for the defendants, and instruction number 1 given in behalf of contestants, upon the same subject, there can be no doubt that the jury was fully, clearly and properly instructed as to the meaning of “undue influence,” which, as defined in the cases cited, is influence such as to amount to over-persuasion, coercion or force, destroying the free agency and will-power of the testator.

It is insisted that the court erred in not permitting Frank Grant, a witness for plaintiffs, to. testify as to what Mrs. McLane said about her moving to Perryville and why she came to locate there. There was, we think, no error in refusing to allow the witness to answer the question, as declarations made by the testatrix, either before or after the making of the will, were only admissible as tending to show her mental capacity or the state of her feelings (Gibson v. Gibson, 24 Mo. 227; Spoonemore v. Cables, 66 Mo. 579 ; Rule v. Maupin, 84 Mo. 589; Bush v. Bush, 87 Mo. 480); and whatever might have been said by the testatrix as to why she moved to Perryville was foreign to any issue in this case, and would not tend to show her mental capacity or the state of her feelings toward the parties to this suit. It was, therefore, immaterial and inadmissible.

Plaintiffs also contend that the court erred in not permitting J. H. Kiesler to testify as to what Dr. Hatcher, one of the proponents, said about Mrs. McLane ’s property; and in not permitting W. A. Difani to testify as to what Miss Statler, the other proponent, and Dr. Hatcher said about Mrs. McLane’s property; and in refusing to permit Frank Grant to give any testimony relative to what- Miss Statler and Dr. Hatcher sai;d about said property, or as to what Miss Statler said to him about the gift of Mrs. McLane to her of the house at Brazeau and some gifts in money.

The question asked J. H. Kiesler was .this: “Before the making of this will, which you witnessed, did you have any talk with Dr. Hatcher about Mrs. McLane’s property?” The objection to the admission of such testimony was upon the ground that it was incompetent, and that the admissions of one of the legatees under the will, in the absence of the others, were incompetent and inadmissible. This subject yas fully discussed, and the authorities reviewed by Judge Valliant in the case of Schierbaum v. Schemme, 157 Mo. 1, and the conclusion reached was that the admissions made by one devisee cannot be given in evidence against another devisee claiming under the same will. The same or similar questions were asked witnesses Difani and Grant, and, for the'reasons.indicated, the objections thereto were properly sustained by the court. But the action of the court in refusing to permit answers to the questions asked was proper for another reason: ‘ ‘ The plaintiffs should have gone further, and stated what they proposed to prove, so that the court could determine whether it was material. The case might be reversed on the naked refusal to permit an answer to this question, and on retrial it might appear that the matter elicited was wholly immaterial and incompetent.” [Jackson v. Hardin, supra, and subsequent cases.]

It is claimed by plaintiffs that the court erred in admitting the testimony of Ella Statler, Dr. Hatcher and several other witnesses as to declarations or statements of Mrs. McLane as to why she left Otho Price’s and built a house at Brazeau; and as to misunderstandings or disputes over eggs, chickens and a horse, which had taken place seventeen or eighteen years before the execution of the will and some years before she moved to Brazeau. As to the first of these two assignments of error, defendants insist that the evidence was pertinent and material as bearing upon Mrs. McLane’s feelings toward her relatives, and as rebutting the contention of contestants that the defendant, Ella Statler, assumed mastery and control over Mrs. McLane and coerced her into an abandonment of her relatives. It was admissible as tending to show that Mrs. McLane’s change of feeling towards these relatives was was not brought about by Ella Statler, nor by anything she had said or done, but was the result of indifference manifested by her relatives towards the testatrix.

Ben Knox, a witness for contestants, had previously testified to a difficulty between Miss Statler and Otho Price, and stated that after this difficulty, which occurred prior to 1900, Miss Statler had control of Mrs. McLane. He also testified that in a conversation had with Mrs. McLane she told him she wanted her property to go to her nephews and nieces, but that while she was talking she glanced over her shoulder to see if Miss Statler was in hearing, and that it appeared to witness that Mrs. McLane did not want Miss Statler to hear-anything she said to him.

Miss Barbara Price, another -witness for the contestants, had previously testified that Mrs. McLane had told her that Miss Statler was good while she (Mrs. McLane) did just as Ella wanted, and that she was not allowed to have her own people, the Prices, come to see her.

Della Price, another of contestants’ witnesses, had previously testified that on the occasion of a visit by her to Mrs. McLane, her aunt, the latter told her that the door of her home was bolted against her relatives by Ella, and that she had to put up with this to keep Ella in good humor.

Mrs. Carrie Barber, another witness for contestants, had previously testified that her aunt, Mrs. McLane, had told her that Ella Statler would not allow her, witness, to come to see her. Witness also testified' that Ella Statler took her aunt away from her, and that her aunt was very near and dear to her.

The testimony of other witnesses for contestants was of a like character. Under the circumstances, the court did not err in admitting the testimony for defendants to which the contestants object.

As to the second of the foregoing assignments of error, respecting evidence in relation to disputes over eggs, chickens and a horse, snch evidence by proponents was in reply to evidence on the part of contestants that there was never any falling ont or trouble between any of the Prices and Mrs. McLane, and. it was admissible as tending to show that Ella Statler did not cause the estrangement between Mrs. McLane and her collateral kindred.

Plaintiffs complain of several other rulings of the court respecting the admission or exclusion of testimony, all of which have been considered, and we have been unable to see wherein such rulings were erroneous.

Lefendánts assumed the burden of proving that the will was not the result of over-persuasion, coercion or force, overpowering and destroying the free agency and will-power of the testatrix, but that it was the offspring of a free and unhampered mind. The evidence to this effect was practically all one way. The testatrix was in full possession of her mental faculties at the time of her will’s execution and 'at the time she dictated its terms, and she knew the objects of her bounty. She had for many years been an invalid, and Ella Stat- ■ ler, at the request of the testatrix, had gone to live with her, and had nursed and cared for her for twelve years --up to the time of her death. Dr. Hatcher had treated her professionally a number of years, during which time, by reason of his kindness and close attention, she became quite attached to him. Prior to the execution of her will her relatives had shown her very little kindness or attention and it is not strange, under the circumstances, that she should have given a portion of her estate to Dr. Hatcher and Miss Statler, her faithful attendants, upon whom she had leaned for so many years.

In Campbell v. Carlisle, 162 Mo. 1. c. 647, there is quoted with approval the following from In the Matter of Grleespin’s Will, 26 N. J. Eq. 523: “Influence gained by kindness and affection will not be regarded as ‘undue’ if no imposition or fraud be practiced, even though it induce the testator to make an unequal and unjust disposition of his property in favor of those who have contributed to his comfort and ministered to his wants, if such disposition is voluntarily made.”

In Mackall v. Mackall, 135 U. S. 1. c. 112, it is said: “It would be a great reproach to the law if, in its jealous watchfulness over the freedom of testamentary disposition, it would deprive age and infirmity of the kindly ministrations of affection, or of the power of rewarding those who bestow them.”

Finding no reversible error in the record, the judgment is affirmed.

All concur.


author: VALLIANT, P. J.

text:
    C. H. ALBERS COMMISSION COMPANY, Appellant, v. SPENCER et al.
    Division One,
    June 29, 1907.
    1, SALES: Cornered Market: Avoidance of Contract. Where plaintiffs, sellers of number two red winter wheat, were as much to blame for a corner in the wheat, as were defendants, buyers from plaintiffs, the courts will not set aside those sales and enjoin a bank or the exchange from paying to defendants the money put up to meet the margins.
    2. -: -: -: Fixing Price. The fact that one of defendants, a purchaser of wheat from plaintiffs for future delivery, testified that after he-and his associates had cornered the wheat they could have named two dollars a bushel as the price, is not sufficient to establish a combination and conspiracy that will avoid the contracts of sale, but the question still remains whether or not the price they actually named (in this case ninety-two cents) was unreasonable and fictitious; and in determining that question other causes that might have influenced the price, such as shortness in the crop, rumors of war in wheat-growing countries, prices prevalent in other cities and prices of other kinds of wheat in the same city while the corner lasted, and prices of the same kind of wheat after the corner ended, are to be considered.

      3. -: -: -: -: Rules of Exchange: Neglect to Invoke. "Where sales for future delivery of grain were made on a board of trade or exchange and under contracts on which margins have been deposited, and were made with specific reference to the rules of the exchange, those rules are to be read into the contracts, and if they give the board of directors power, in case of a failure of seller and purchaser to adjust their respective claims, when called upon by either, to direct the payment of the deposit of margins, under such terms as they may prescribe, that power should be considered among the influences calculated to control the price; and a seller who had the right to invoke that power and neglected to use it, has no right to complain in a court of equity of unfair treatment.
    4. -: -: Illegal Contracts: Federal Statute. The Federal statute denouncing certain sales of grain as illegal, has nothing to do with contracts made in Missouri to be performed in Missouri. And contracts for the purchase of grain made by residents of Missouri through Chicago agencies, to be delivered in Missouri, are also such contracts.
    5. -: -: -: State Statute: Secs. 8978 and 8981: Equity. Section 8978, Revised Statutes 1899, denouncing every pool, trust, agreement and combination to regulate, control or fix the price of any article therein referred to, or to limit the amount of any product or commodity to be produced, as illegal, and the two sections next following, making it the duty of the Attorney-General and the prosecuting attorneys to take certain action to prevent the violation of the statute, and to restrain those who would violate it, are intended for the correction and prevention of such unlawful acts, by proceedings in court in the name of the State; and section 8981 gives to a person injured by such unlawful act a remedy which is by a suit for damages wherein he may “recover three-fold the damages he has sustained,” etc.; and if a defendant was guilty of violating section 8978, and plaintiff was injured thereby, plaintiff’s remedy is a suit for damages under section 8981, and not otherwise. His remedy is not by a suit in equity. In aid of the suit at law, upon proper showing, as of insolvency or fraud, a court of equity might hold the marginal deposits, to prevent their dissipation while the suit was pending, but otherwise there is no equity jurisdiction.
    6. -: -: -: Sections 8965 and 8969. The unlawful conduct referred to in section 8965, Revised Statutes 1899, is likewise a matter between the State and the offending party; and the contract or agreement declared by section 8969 to be void is the contract or agreement to do what sections 8965 and 8966 forbid, but that contract is not an agreement made by a seller of grain to sell purchasers so much wheat to he delivered in future. There is no law forbidding the purchase of grain to be delivered on a future date.
    7. -: --: Large Sales: Bulling Market: Future Delivery. The law does not forbid the purchase of grain to be delivered in the future. Nor does it limit the quantity of a commodity one is permitted to buy, so long as he is guilty of no fraud or unlawful combination, even though his purchases aggregate an amount so large as to result in enabling him to bull the market.
    8. -: -: Equity. The gravamen of plaintiff’s complaint is that defendants combined to create a corner in wheat for December, the time the wheat sold by plaintiff to them in the summer and fall was to be delivered, and thereby forced the price to an unreasonable and fictitious figure. The evidence does not show that the price was fictitious or unreasonable, but if it had, it at the same time would have shown that plaintiff during the month of December sold very large quantities of the same kind of wheat at the same fictitious and unreasonable prices and reaped large gains from such sales. It also shows that plaintiff was as active in the market on one side as defendants were on the other, and that it was a battle between the bears and the bulls, in which the bulls were the victors. Held, that there is nothing in that kind of contest that especially appeals to the jurisdiction of a court of equity, and that plaintiff neither by its pleading nor by its evidence had made out a case that calls for the exercise of that jurisdiction.
    9. -: -: -: Arbitration. Where the parties to the contracts of sale of grain had, both by the rules of the exchange and the contracts themselves, made the board of directors of the exchange arbitrators of their differences, and there is nothing unreasonable or unlawful in the rules, and no charge is made of fraud or improper conduct on the part of the board, a court of equity will not exercise its extraordinary powers to prohibit the board from doing what the parties by their contract expressly authorized them to do.
    10. REMEDIES: Under Statute:. Equity. Where a right is created by a statute and a remedy for its violation is given by the same statute, that remedy is exclusive, unless the statute says otherwise.
    Appeal from St. Louis City Circuit Court. — How. Horatio D. Wood, Judge.
    Affirmed.

      Barclay & Fauntleroy for appellant.
    (1) In determining whether or not a temporary injunction should he granted and maintained, pending litigation, plaintiff need only show “prohable cause” for the injunction, together with evidence of serious injury and damage if the injunction were denied. “Where the dissolution of an injunction would be practically a denial of the relief to which the complainant might show himself entitled on final hearing, the injunction should be continued.” 16 Am. and Eng. Ency. Law (2 Ed.), 433; Sanitary Works v. Reduct. Co., 94 Fed. 696; Newton v. Levis, 79 Fed. 718; Railroad v. Railroad, 141 Fed. 901. (2) A conspiracy to fix the price of wheat, a necessary of life, and extort thereby a fictitious price therefor, by means of a “corner,” is unlawful, a violation of the State and Federal ■ statutes (where the transaction involves interstate transactions) and precludes recovery on the contracts, whose solution depends on prices .claimed or demanded by the manipulators of the “corner.” 26 U. S. Stat. at Large, p. 209; 3 U. S. Comp. Stat., p. 3200; R. S. 1899, secs. 8978, 8965; Samuel v. Oliver, 130 111. 73; People v. Exchange, 145 N. Y. 267; Railroad v. Collins, 40 Ua. 582; Hooker v. Vandewater, 4 Denio 349; Moore v. Bennett, 140 111. 69; 2 Beach, Modern Contracts, sec. 1582. (3) Sales of grain for future delivery (without intent not to deliver) are doubtless ■valid, even if the seller does not have the grain on hand at the time, but that sort of sale does not sanction or warrant a corner to create a fictitious price at delivery. Crawford v. Spencer, 92 Mo. 498; Kent v. Miltenberger, 13 Mo. App. 503; Mulford v. Caesar, 53 Mo. App. 263; Cockrell v. Thompson, 85 Mo.. 510. (4) Persons injured by acts done in defiance of statutes againstpools and conspiracies or other unlawful conduct may maintain injunction to prevent the execution of the purpose against which the unlawful and forbidden conduct is directed. Crawford v. Spencer, 92 Mo. 498; St. Lonis, etc., Co. v. Terre Hante, etc., Co., 145 U. S. 407; Wood-son v. Barrett, 2 Hen. & M. 80;'Lloyd v. Gurdon, 2 Swanst. *180; 15 Am. and Eng. Eney. Law (2 Ed.), 1005; Harding v. Glucose Co., 182 111. 551. (5) Equity has power to cancel written contracts based on violations of statute as well as to enjoin the enforcement of such contracts. IT. S. v. Freight Assn., 166 IT. -S. 290; Johnson v. Cooper, 2 Yerger (Tenn.) 524; 15 Am. and Eng. Ency. Law (2 Ed.), 1002. (6) The obvious error of the learned and honored trial judge in dissolving the injunction in this case arose from his failure to give effect to the Missouri statute which permits a purchaser from an unlawful combination to resist the enforcement of contracts made in defiance of law, as distinctly declared by the statute. Such contracts of purchase and (for stronger reason) of sale are void and not enforceable by either party, buyer or seller, if tainted by illegality of monopoly. • E. S. 1899, secs. 8966, 89701; Diamond Glue Co. v. Glue Co., 187 IT. S. 611; Heim Brewing Co. v. Belinder, 97 Mo. App. 64; Ehrhardt v. Eobinson, 78 Mo. App. 404; Nat. Lead Co. v. Paint Co., 80 Mo. App. 247; Heileman v. Peimeisl, 85 Minn. 121; Finch v. Granite Co., 187 Mo. 244; -Tri-State Co. v. Amusement Co., 192 Mo. 404; IT. S. Eubber Co. v. Shoe Co.,-132 Fed. 398.

      Judson & Green for respondents.
    (1) (a) The circuit court had no jurisdiction to entertain the application for injunction, and it was improvidently issued in the first instance', as appellant was bound to appeal to the jurisdiction of the Exchange which he had already invoked in the matter of the certificates of deposit for the security of-the contracts. Pacaud v. Waite, 218 111. 136. (b) The rules of the Exchange expressly provided against fictitious 'and manipulated prices, so that there was no reason disclosed why appellants should not-have had a full and fair hearing as to their contention in the tribunals expressly selected by themselves. (2) (a) The petition discloses a plain and adequate remedy at law by action for damages. Under their own allegations, the amount of liability was fixed by the rules. There was nothing left in the controversy but damages on an admittedly defaulted contract. Humphreys' v. Atlantic Milling Co., 98 Mo. 552; Benton County v. Morgan, 163 Mo. 661; Bank v. Packing Co., 138 Mo. 59. (b) There is no allegation of insolvency on the part of Spencer and ' Milliken or any of their brokers. Arbogast v. Bank, 125 Fed. 518. (3) There is no equity in the petition upon its face, in that there is no tender of the wheat which appellants agreed to deliver by their contracts. The alleged “corner” only related to the month of December. There is no allegation of a tender since that time, nor any reason why the wheat has not been tendered since that time. (4) There is no equity in appellant’s petition in that upon its own showing it was a speculator in the market, contracting to sell and deliver what it did not own, admittedly taking the benefit of the prices which it now alleges were fictitious, violating the rules of law and of public policy in its control over public elevators in Illinois in such speculations, and asking the court to be relieved of the consequences of such speculations. Center Elevator Go. v. People, ex rel., 174 111. 203; Hannah v. People, 198 111. 77; Illinois Railroad & Warehouse Law of 1871. (5) (a) Even assuming that the court below had jurisdiction and that there was a case of equitable cognizance presented by the petition, there is nothing for this court to review, in that the finding of the court below and the dissolution of the injunction was based upon a determination from the evidence that the price on December 31 was not fictitious but the reasonable market price. Not only is this conclusion warranted by the evidence, but no other conclusion could have been made upon the evidence, (b) Irrespective of all other points, there was a complete failure of proof on the essential averment of a fictitious price of December wheat on December 31, 1903. A price influenced by speculative conditions for which the speculative seller is equally responsible with the speculative buyer, is not necessarily a fictitious price, and in the case at bar there is no evidence whatever of a fictitious price. Kent v. Miltenberger, 15 Mo. App. 480. The effect of the purchases on the price was incidental only. U. S. v. Knight Co., 156 U. S. 1.
   VALLIANT, P. J.

This is a suit in equity. There were five suits of the same nature and in reality between the same parties, but the real defendants having acted in the transactions involved by different agents or brokers those were also made parties defendants and for that reason separate suits seemed advisable. The only defendants having any real financial interest in the suits are the executors of the will of Corwin H. Spencer (one of the original defendants who has died since the appeals were taken) and John T. Milliken, and therefore for brevity they will hereinafter be called the defendants; the St. Louis Merchants Exchange and the individuals composing its board of directors, and the National Bank of Commerce are also parties defendants, but when it becomes necessary in this opinion to mention either of them the mention will be by name. When the five suits came on for hearing they were by agreement of the parties consolidated and tried as one.

The plaintiff and the defendants at the time of the transactions involved were members of the St. Louis Merchants Exchange and the transactions were conducted on the floor of the Exchange and subject to its rules. The controversy grows out of sales by the plaintiff to the defendants, during the fall of 1903, of No. 2 red winter wheat to he delivered on any day, at the option of the plaintiff, during the month of December, 1903. The plaintiff, under the rules of the Exchange, to secure the performance of its contracts deposited in the National Bank of Commerce certain sums of money to cover what is called in the language of the Exchange “margins.” All during the month of December the market price of No. 2 red winter wheat was higher than the price at which the plaintiff had sold it to defendants and the plaintiff failed to deliver it according to contract, therefore according to the strict terms of the contract the defendants were entitled to receive from the bank the moneys deposited as margins. But by the terms of the certificate of deposit the money was payable to defendants only on the indorsement of both parties to the contract, the seller and the buyer, or under order of the board of directors of the Exchange.

The plaintiff refused to endorse the certificate of deposit and, apprehending that the board of directors of the Exchange would make the order, filed these suits in equity, alleging that the defendants had entered into an unlawful combination or conspiracy whereby they had cornered the No. 2 red wheat market and forced it up to an unreasonable and fictitious price, in violation of. the statute law of the United States and that of the State of Missouri, and praying that the plaintiff’s contracts be cancelled, that the board of directors be enjoined from ordering the moneys deposited for margins to be paid to defendants, and enjoining the bank from paying the same. On filing the bills temporary injunctions issued as prayed, after which answers were filed and the causes came on for hearing-on motions to dissolve the injunctions. On a very elaborate hearing apparently of all the points in dispute, during which evidence was introduced that covers over 700 printed pages of the record in this court, the trial court sustained the motions and dissolved the injunctions, hut did not dismiss the bills for the reason as stated in the order dissolving the injunctions that other than injunctive relief was sought. From the order, dissolving the temporary injunctions the plaintiff appealed and plaintiff also moved the trial court to continue the injunctions in force pending the appeal which the court refused and plaintiff excepted.

The main proposition on which the plaintiff relied at.the trial was that the defendants had by combination and conspiracy cornered the market and forced the price of the wheat up to an unreasonable and fictitious figure.

The sales in question were made by the plaintiff at various dates running through September, October and November, 1903, at prices ranging from 80 to 84 cents, and they aggregated more than 300,000 bushels. The prices of the wheat during December ranged from 90 to 93 cents and closed on the 31st of that month at 92 cents, so that there was a wide margin on the contracts in favor of defendants.

The trial judge made a very careful review and summary of all the evidence in the case, a copy of which is in the record, in which he says that there can be no doubt but there was a comer in No. 2 red winter wheat, but he does not lay the blame therefor to the buyer any more than to the seller, it was influenced as well by those who thought the price was too high and would decline (of whom was plaintiff) and therefore speculated by selling short, as by those who thought it would advance (of whom were the defendants) and speculated by buying long. Both parties were buying or selling as in their respective judgments the market would go up or go down; there was nothing more praiseworthy or blameworthy in the conduct of one than of the other. There is no more merit in depressing the market to the disadvantage of the farmer who has wheat to sell than there is in advancing it to the disadvantage of the miller who comes to buy. There is nothing in the evidence to indicate that either the plaintiff or the defendants were in the market for any other purpose than their own gain and there is no suggestion of fraud attached to either.

We have said that the trial court, though finding that a corner existed, did not attribute its existence to the buyers more than to the sellers, and we think the court was right in that conclusion. The first tendency of selling short is of course to depress the market but after sales for future delivery in great quantities have been made and crop conditions and market conditions indicate that there will be a considerable rise in the market price those large outstanding contracts of sales for future delivery signify to those who have the commodity for sale that there must come a demand in the market to meet those contracts, and they stiffen in their demands, then the efforts on the part of those who have sold short to buy against the day of the maturity of their contracts excite the market, and when that condition comes if those who have previously been purchasers have purchased to such an extent that there is not enough of the commodity outside of their purchases to supply the demand of those who are forced to make purchases to fill their former contracts the result is a comer and the early purchasers are, to some extent at least, masters of the situation. That is what occurred in this case. Selling short in great quantities for December deliveries created a demand for December wheat with which to fulfill those contracts and if the supply was not sufficient an inflamed market was the natural result. But when buyer and seller are dealing with each other on terms of equality the one is no more responsible for the result than the other.

The evidence shows that No. 2 red winter wheat is a special feature of the pt. Louis market, it is sold elsewhere, hut St. Louis is the main market for it; the evidence also shows that the crop of No. 2 red winter wheat of 1903 was very short, not much more than one-half what it was in 1902, and there were other disturbing influences that tended to enhance the price of this commodity in this market. The defendants did not acquire by their purchases all the crop of No. 2 red winter wheat but in realty only a small part of it, the total crop grown in Missouri, Illinois and Indiana in 1903 was 62,760,000 bushels while the total purchases of the defendants amounted to only 7,500,000. But the advantage that the defendants acquired arose, as plaintiff alleges, from the fact that by their contracts, which were made to be performed under the rules of the St. Louis Merchants Exchange, the deliveries of the grain were to be made in the elevators within the jurisdiction of that Exchange and the defendants’ purchases were sufficient in quantity to cover the capacity of those elevators, and that being so, it is contended that the defendants could dictate to the plaintiff the price of the wheat it was bound to deliver under its contracts. The defendant Spencer testified that having purchased all the wheat of that quality wanted in the St. Louis market they could have named the price to suit themselves, they could have named it at $2 a bushel, but did name it at 92 cents because they did not want to establish what might be regarded as a fictitious price. Under that condition of the market if there had been no other power to influence the price doubtless it was at the will of the defendants, but in fact there was another power to influence and control it as will be noticed hereinafter.

The judgment of the trial court however did not turn .on the question of corner or no corner; the question was, was the price unreasonable or fictitious ? The court found that it was not. We have gone over the testimony and are satisfied that the finding" of the- chancellor on that question was correct.

There would be no profit in summarizing the evidence in this opinion, the unusually short crop alone might reasonably account for an unusually high price, but there were other causes, among which were rumors of war between Russia and Japan. The prices prevalent in St. Louis during the month of December and on the last day of that month were not out of proportion to the price of the same article in other markets and not out of the normal ratio of the price of wheat of other grades. Besides the prices of No. 2 red winter ■ wheat in the St. Louis market ranged as high or higher after the 31st day of December, 1903, which was the end of the corner, as they did during that month.

We have above said that besides the manipulations of the parties there was another power to influence or control the prices at which settlements could be required under contracts like these, or, more strictly speaking, at which the marginal deposits could be regulated. That power was in the board of directors of the Merchants Exchange; these parties had agreed to submit to it, the plaintiff had the right to invoke it and the defendants were bound to obey it. In the preamble to the rules of the Exchange, after reciting the general purpose of the institution, it is said: ‘ ‘and with a view to avoid and adjust, as far as practicable, the controversies and misunderstandings which may arise between individuals engaged in trade when they have no acknowledged rules to guide them, do hereby agree to be governed by the following rules, regulations and by-laws.”

Then follow rules very explicit in their terms, among which are provisions governing transactions of the kind now in question, prescribing how deposits shall be made to cover margins, the form of certificates of deposit, how, when and by what authority they are to be paid, how prices are to be fixed on which the margins are to be calculated, etc.

Section 7 of Rule VII provides that: “The Board of Directors, upon the application of a party in interest, shall fix the value of any commodity for marginal purposes only, and in determining the value of the property under this rule, its value in other markets, or for manufacturing or consumptive purposes in this market, together with such other facts as may justly enter into the determination of its value, shall be considered, irrespective of any fictitious price it may at the time be selling for in this market.”

Section 6 of the same rule is as follows: “In case of a failure between the contracting parties to settle and adjust their respective claims under a contract on which margins have been deposited, and either party refuses- to endorse the certificate of deposit, the party claiming such deposit may apply to the board of directors, who shall have the power to direct the payment of the deposit, or such portion of it as may appear to be due to either or both parties, under the rules of the Exchange, under such terms as the directors may prescribe ; provided, however, that no surrender of the deposit shall be ordered by the board pending any arbitration or reference touching the rights of the parties under the said contract, or in case the party refusing to adjust the dispute shall signify his willingness to submit the matter to the Committee of Arbitration, or the Committee on Contracts for Future Delivery.”

The contracts in question were made with specific reference to those rules and the rules are to be read into the contracts. There was evidence tending to show that the plaintiff with others in like condition invoked the power of the board of directors under those rules to fix the price of December wheat and that the board did so. Perhaps strictly speaking it is not correct to say that this plaintiff was one of those who invoked that action because its corporate name did not appear in the proceeding before the board, but another corporation represented by its president, Mr. Albers, who was also at the same time president of the plaintiff corporation, was one of them, and at the hearing before the board Mr. Flesh, who was at the time the vice-president of the plaintiff, took an active part. But for the purpose of this case it is not very important that it should be shown that the plaintiff in its own right was a party to that proceeding; it is sufficient that it had a right under its contracts to invoke that authority and it has no right to complain in a court of equity of unfair treatment when it has neglected to take the measures provided for its protection.

It is contended in behalf of the plaintiff that the conduct on the part of the defendants in creating a corner in the market for No. 2 red winter wheat was an illegal act denounced by the act of Congress (26 U. S. Stat. at Large, p. 209) as well as by the statute of Missouri (sec. 8978, R. S. 1899). Since the contracts we are dealing with now were made in Missouri to be performed in Missouri the Federal statute has nothing to do with them, and this is so although the evidence shows that defendants made some other purchases through Chicago agencies for No. 2 red winter wheat to' be delivered in St. Louis during December 1903, still those also were contracts made in Missouri to be performed here.

Section 8978, Revised Statutes 1899, denounces every pool, trust, agreement, combination, etc., to regulate, control or fix the price of any article therein referred to, or to limit the amount of any product or commodity to be produced, as illegal. The two sections nest following make it the duty of the Attorney-General and the prosecuting attorneys to take certain action to prevent the violation of the statute and restrain those who would violate it. Those sections are intended for the correction and prevention of snch unlawful acts by proceedings in court in the name of the State. The section next following, 8981, gives to a person injured by such unlawful act a remedy which is by suit for damages wherein he may “recover threefold the damages by him sustained, and the costs of suit, including a reasonable attorney’s fee.”

If the defendants were guilty of violating section 8978 as plaintiff contends they were, and if the plaintiff was damaged thereby, its remedy is under section 8981 and not otherwise. In aid of a suit at law under that section if a proper showing were made, as of insolvency of the parties or fraud, or the like, a court of equity might hold the marginal deposits to prevent their dissipation while the suit was pending, but otherwise there is no equity jurisdiction. Where a right is created by statute and a remedy for its violation is given by the same statute, that remedy is exclusive unless the statute says otherwise.

Plaintiff also refers to section 8965, Revised Statutes 1899, which also denounces certain combinations to fix prices, etc., as unlawful and prescribes penalties for violation. The unlawful conduct referred to in that section is also a matter between the State and the offending party.-

The contract or agreement declared by section 8969 to be void is a contract or agreement to do what sections 8965 and 8966' forbid, but such contract is not the contract which this plaintiff made with these defendants to sell them so much wheat to be delivered in December, 1903.

Section 8970 provides that a purchaser of any article from a person or concern doing business in this State in violation of the above-mentioned sections, should not be liable to pay for the same, but the plaintiff is not a purchaser under such circumstances. The plaintiff’s case is not within any statute to which we have heen referred.

The evidence does not show that these defendants have done any of the acts forbidden in the statutes above referred to. It shows that during the summer and fall of 1903 they bought from various parties wheat to be delivered to them in December; there is no law forbidding such purchases. It also shows that their purchases aggregated an amount so large as to result in enabling them to bull the market, but the law does not limit the quantity of a commodity one may contract to buy a.s long as he is guilty of no fraud or unlawful combination. The only combination the evidence in this case indicates that these two defendants entered into was to buy for their joint account. It was shown that many of their purchases were made by brokers for them without using their names, but plaintiff does not contend that that was unlawful or fraudulent; in fact, the evidence shows that the plaintiff itself was a large operator in transactions of that character.

The plaintiff neither by its pleading nor its evidence has made out a case calling for the exercise of the jurisdiction of a court of equity. The gravamen of its complaint is that the defendants combined to create a corner in December wheat and thereby forced the price to an unreasonable and fictitious figure. The evidence does not sustain the charge. But if the evidence had shown that the price was unreasonable or fictitious, it would have shown at the same time that the plaintiff during the month of December sold very large quantities of No. 2 red winter wheat at the alleged unreasonable and fictitious prices then prevailing and reaped large gains from such sales.

The evidence shows that the plaintiff was as active in the market on one side as the defendants were bn the other, it was only a battle between the bears and the bulls in which the latter seem to have been the vie-tors; there is nothing in that hind of contest that especially appeals to the jurisdiction of a court of equity. In such case, if contracts have been violated or wrong has been done the party complaining must show something more than a mere violation of his legal rights to entitle him to relief in equity. We are referred to Crawford v. Spencer, 92 Mo. 498, as authority holding that persons injured by acts done in violation of the statutes against pools and conspiracies may have relief in equity regardless of any other fact calling for equity jurisdiction. We do not so understand that case. The equity jurisdiction there invoked was to enjoin the foreclosure of a deed of trust given to secure a note the consideration of which arose out of an alleged unlawful future deal in grain. The consequence of the sale of land under a deed of trust in conformity to the terms and exigencies of the deed is quite different from the consequence of the payment of a sum of money by a solvent bank to a person whom, the plaintiff alleges is not entitled to it.

The bank that held these deposits was. responsible to the plaintiff if it should pay them out contrary to the express terms of the contract and there is no suggestion that the bank was insolvent. Under the rules of the Exchange and the terms of the certificates of deposit, if the parties to the transaction, the buyer and the seller, could not agree to j ointly endorse the .certificate for payment, the board of directors of the Exchange were authorized under certain conditions to order such payment: That authority the parties to these contracts had expressly conferred on the board of directors, not only when they became members of the Exchange, but in each of the contracts itself was this express clause: “This contract is subject in all respects to the rules and regulations of the Merchants Exchange of St. Louis.” Yet the plaintiff without any allegation of fraud or improper conduct of any kind on the part of the board of directors asks a court of equity to exercise its extraordinary power to enjoin the board from doing what the contracts signed by the plaintiff expressly declared they should do. There is nothing unreasonable or unlawful in the rule giving that power to the board of directors of the Exchange; indeed its wisdom and justness is apparent on its face. We have often held clauses in contracts for large public works agreeing to submit _ certain matters to an arbitrator therein named, to be valid, and the Supreme Court of Ulinois has held valid a rule of the Chicago' Board of Trade similar to this rule. [Pacaud v. Waite, 218 Ill. 138.]

The only error the trial court committed was in issuing the temporary injunctions in the first place, but that error it has itself corrected. The judgment is affirmed.

All concur.


author: LAMM, J.

text:
    PADGETT, by Guardian, v. SMITH, Plaintiff in Error.
    Division One,
    June 29, 1907.
    1. MOTION: No Notice. A motion to set aside a submission of a cause on brief and argument, and to set down the case for further argument, will be stricken from the files, where no copy of the motion and of the brief in support thereof and no notice thereof have been served on the opposite party or his counsel.
    2. Writ of Error: Interlocutory Judgment. Error may be brought only on final judgment, and a writ of error sued out before final judgment is improvident. Interlocutory judgments in partition may be reviewed in appellate courts, but the proceeding, under the statute, is by appeal, not error.
    3. -: Affirmed on Appeal. Where a judgment has been affirmed on appeal, for failure to comply with the statute (sec. 812, R. S. 1899) and the rules of the court, a review by writ of error is precluded. If a judgment is affirmed it so remains, unless disaffirmance be allowed on timely application at the same term, or unless overturned on a new appeal.
    4. Motions. There must be an end of motions in a case. Where a judgment has been affirmed and disaffirmance disallowed, subsequent motions to set aside the judgment of affirmance will be stricken from the files. Both the doctrine of stare decisis and of res adjudieata so require.
    Error to Schuyler Circuit Court. — Row. Nat. M. Shelton, Judge.
    Wkit quashed.

      E. B. Bartlett and O. D. Jones for plaintiff in error.

      Higbee & Mills and Smoot, Boyd é Smovot for dedendant in error.
   LAMM, J.

Ervine F. Padgett, by guardian, brought a suit to establish a resulting trust in his favor in certain lands in Scotland county, Missouri, and for partition of said lands between him and Smith. An interlocutory judgment in partition, settling the interests of all parties, was rendered on the 10th day of November, 1903, in the Schuyler Circuit Court, on change of venue.

From that judgment Smith appealed. Thereafter, for failure to comply with the statute (R. S. 1899, sec. 812) and the rules of this court, the judgment was affirmed here on June 2nd, 1904.

On June 9th, 1904, a motion to set aside the judgment of affirmance was filed. On June 22nd, 1904, that motion was overruled.

On October 31st, 1904, Smith sued out of this court a writ of error on the same judgment, and the pending proceeding is on that writ.

Later, plaintiff in error lodged here another motion to set aside the judgment of affirmance and submitted a brief in support of it.

Later, on April 11th, 1907, yet another motion to set aside the judgment of affirmance was filed, supported by a brief.

Presently, after the cause had been submitted on briefs and argument, plaintiff in error filed a motion to set aside the submission and reset the ease for further argument, which motion was accompanied by a brief.

I. The motion to set aside the submission and set down the case for further argument is stricken from the files, no copy of the motion and brief and no notice having been served upon defendant in error or his counsel.,

•II. The writ was improvidently sued out. Because :

(a) . Error may be brought only on a final judgment. [R. S. 18991, sec. 835.] A final judgment was not rendered until the 15th day of November, 1904, as shown by this record. Interlocutory judgments in partition may be reviewed in appellate courts. [R. S. 1899, sec. 806.] But the remedy is appeal, not error, in the special cases enumerated in that section. [Kroeger v. Dash, 82 Mo. App. 332; Pittsburg Plate Glass Co. v. Peper, 96 Mo. App. 595.]

(b) . Moreover, the judgment having been affirmed on appeal, the remedy by error is precluded. [Schnaider Brewing Co. v. Levvie, 41 Mo. App. 584; Brummel v. Phillips, 79 Mo. App. 116; Harburg v. Arnold, 87 Mo. App. 326; Schnabel v. Thomas (Mo. App.), 73 S. W. 917; Cowan v. Shepley, 9 Mo. App. 594.]

Affirmance is affirmance — once affirmed, always affirmed, unless disaffirmance be allowed on timely application at the same term. Here such application was made and overruled. We must not be understood as holding .that the abstract power of this court to overturn its own decision (the natural human right to change one’s mind) on a new appeal in the same case does not exist. Such ultimate power exists and has been used and must be preserved' unimpaired.- But the rare circumstances under which it is used involve the exercise of a high and discriminating power and such circumstances do not exist in this case. Thus saith the wise one:

“It is excellent

To have a giant’s strength; but it is tyrannous

To use it like a giant. ’ ’

III. There must be an end to motions or there can be no end to commotions, i. e., litigation. Due bounds must be set to the versatility of counsel in iteration and reiteration — agitation and reagitation. We may not with propriety at one term solemnly affirm a judgment and then palter and toy with the situation by turning about at a later term and reversing the same judgment, thus doing and undoing, binding and unbinding — knitting and raveling out. The doctrine of stare decisis is in point here.

The undisposed-of motions to set aside the judgment of affirmance are stricken from the files. They were out of time, and are without precedent. The matter was res judicata. One may not make so many bites of one cherry.

The writ is quashed and the proceedings thereon dismissed.

All concur.


author: WOODSON, J.

text:
    EVA CARTWRIGHT et al. v. LIBERTY TELEPHONE COMPANY, Appellant.
    Division One,
    June 29, 1907.
    1. BILL OF EXCEPTIONS: Untimely Filing: Holiday. The appellant was allowed until the first day of the February term to file his bill of exceptions, which was the twenty-second of the month, and he filed the bill on the twenty-third. Held, that the mere fact that the first day of the term fell on a legal holiday was no legal excuse for appellant's failure to file its bill on or before that day, and the bill was not filed in time, and cannot be considered.
    2. -: Cause of Action. An objection that the petition does not state facts sufficient to constitute a cause of action need not be raised in the appellate court for the first time.
    3. STREETS: Shade Trees: Telephone Company: Trespasser. If a telephone company is a trespasser on the street, that is, in the absence of a showing that the city granted it a franchise or a license to occupy its streets with poles and wires, it cannot, when sued by the owner of property abutting on the street for cutting, for the accommodation of its wires, trees along the pavement which beautified his premises and protected his dwelling, shield or protect itself behind the plea that the city had the power to apply the street to all the uses consistent with the purposes for which it was acquired and to delegate to the telephone company the right to conduct its telephone business along the street.
    4. -: ——: Right of Property-Owner in Street. The property-owners in cities, towns and villages own to the center of the adjoining street, subject to the public easement. The municipal corporation has the right to subject the street to all the uses or purposes for which it was acquired; but until it does subject it to one or more of those uses, or so long as he and the city can jointly occupy or use the street without doing violence to the full, free and complete exercise of the public easement, the property-owner is as much the owner to the center of the street as he is of the rest of the lot, and has the same right to use it in any manner and for any purpose not inconsistent with the rights of the public.
    5. -: 7-: Public Health. If not expressly prohibited by ordinance, the lotowner has the right to plant and grow shade and ornamental trees along the edge of the sidewalk in front of his property. They contribute not only to the beauty, comfort and enjoyment of the lot, but are highly conducive to the public health.
    6. -: -: Power of City Over. No one has the right or power to deprive the property-owner of trees planted and grown along the edge of the sidewalk in front of his lot, except the city itself, and even its power is not absolute; it must exercise it with prudence and within reason, and not wantonly or wilfully.
    7. -: -: Public Service Corporations, such as a telephone company, have no right or authority, for the accommodation of its wires and poles, to mutilate, damage or destroy shade or ornamental trees growing in a public street, unless it has been granted that authority,, specially or generally, by the city, and then only when that grant is in harmony with and recognizes the right and interest of the abutting property-owner in and to the trees.
    Transferred from Kansas City Court of Appeals.
    Affirmed.

      W. H. Woodson for appellant.
    (1) The cutting of the branches on trees, located on the public street, by the telephone company, was not a damaging of the private property of plaintiffs for public use within the meaning of article 2, section 21, of our Constitution. When the public acquires a street in a city, either by condemnation, grant or dedication, it may be applied to all purposes consistent with the proper use of a street. It is only when a street is subject to a new servitude inconsistent with and subversive of its proper use as a street, that the abutting landowner can complain. The erection and maintenance of telephones are a proper use of a street. The owner of the adjoining premises cannot claim damages resulting thereto from such user of the street. Julia Building. Assn. v. Bell Tel. Co., 88 Mo. 258; Ferrenbach v. Turner, 86 Mo. 416; Belcher Sugar Refining Co. v. St. Louis Crain Elevator Co., 82 Mo. 121; West v. Bancroft, 32 Vt. 367. (2) Plaintiffs’ ownership of the trees, planted by them or by devolution of title to the adjacent property, was and is a qualified and limited ownership, subordinate to the public right to safe and convenient passage, and to the rights, powers and duties of the governing municipal body in the protection, promotion and establishing of every public use in and upon the streets of a city. So. Bell Tel. & Tel. Co. v. Francis, 109 Ala. 224. (3) Whenever an electrical company has received proper legislative and municipal authority to construct its lines in the streets, it acquires power to do and perform all acts which are necessary to effect the purposes intended; and where it is necessary, in the construction and maintenance of its line, to cut or trim trees planted in or by the sidewalk, it may Out such trees so far as is reasonably necessary, but will be liable to- an abutting owner in damages for any unreasonable and unnecessary cutting. Joyce on Elec. Law, 395 ; Gorman v. East Chester Elec. Co., 801 Hun 290.

      D. G. Allen, H. F. Simrall and 8. G. SandusJcy for respondents.
    (1) There was no bill of exceptions filed in this cause within the time required, and there is nothing before the court except the record proper. The fact that the first day of the February term, 1904, came on February 22, — a public holiday, — does not affect the question. February 22 is dies juridicus, except for certain special purposes. Stewart v. Brown, 112 Mo. 182; In re Charles Greene, 86 Mo. App. 223. This bill could have been filed on any day between November 12, 1903, and February 22, 1904, inclusive, except Sundays. (2) There is no error in the record proper. The petition contains the necessary allegations to recover both compensatory and exemplary damages. (3) Appellant showed no authority to be in this street for any purpose. It was a trespasser. R. S. 1899, see. 1260'. (4) Respondents, as abutting lotowners, were entitled to recover damages for tbe mutilation of their shade trees along their lot line. McAntire v. Tel. Co., 75 Mo. App. 535; 2 Dillon on Municipal Corp. (4 Ed.), sec. '663; Daily v. State (Ohio), 37 N. E. 710.
   WOODSON, J.

The plaintiffs instituted this suit against the defendant, in the circuit court of Clay county, to recover damages for injuries done their property, caused by cutting and otherwise mutilating ornamental and shade trees, growing along the sidewalk, near the curb line, in front of their dwelling, on one of the public streets of the city of Liberty.

The petition for cause of action alleged, substantially, that the defendant was a corporation, organized and , existing under and by virtue of the laws of the State of Missouri; that on September 10, 1903, and prior thereto the plaintiffs owned and were in possession of the property (describing it), and that it had been improved by the erection of a good dwelling thereon, reasonably worth the sum of $4,500, and had been further improved by setting out shade trees, along the pavement in front of said lots, which had grown to be large trees and served to both beautify said property, and to protect the said dwelling house, which fronted west, from the west sun, which added greatly to the comfort and enjoyment of said dwelling; that said trees .were located along the pavement, between the center line of the street and the said dwelling aforesaid, and were the property of the plaintiffs. That on September 10, 1903, the defendant, by its agents, officers and servants, acting within the line of their employment, wilfully and wrongfully cut and mutilated the tops and branches of said trees, thereby destroying their beantv and the shade and the comfort they afforded those in the occupancy of said dwelling; that no damages were assessed, nor paid, before said trees were cut, nor at any time, nor were any commissioners appointed for assessing said damages; bnt defendant cut and mutilated said trees in tbe presence of Eva Cartwright, one of the plaintiffs, against her consent and over her objections, and in a wilful, wanton and insulting manner, and in reckless disregard of the rights of plaintiffs. That by the wrong aforesaid done said property was injured and depreciated in value to the amount of two hundred dollars; and that plaintiffs were entitled to exemplary damages in the sum of $500, and the prayer was for judgment for said sums.

The answer virtually admitted all the allegations of the petition, excepting the damages. It alleged that the limbs and branches of said trees were in the line of and obstructed its cable and interfered with its telephone service to the public; that said limbs and branches had grown up and pressed against said cable and caused cracks and holes to be rubbed and worn therein, through which rain and water leaked, and that it was thereby greatly damaged and prevented from carrying on its business and from discharging its duty to the public; that, in order to remove said obstructions, it did, in a careful and prudent manner,cut and trim said trees and the branches thereof, in a manner to do as little damage thereto as was possible and to mar them no more than was absolutely necessary, under the circumstances. It also alleged the defendant acted in good faith, and denied all wilful and wanton conduct on the part of its agents and servants.

There was a trial before the court and jury.

The plaintiffs introduced evidence tending to prove all the allegations of the petition; and the defendant’s testimony introduced tended to establish those of the answer. The jury found for the plaintiffs and assessed their compensatory damages at the sum of ten dollars, and the exemplary damages at the sum of twenty-five dollars.

In due time defendant filed its motions for a new trial and in arrest of judgment, which were, by the court, overruled, and defendant excepted, and, in due time, appealed the cause to the Kansas City Court of Appeals. The appeal was allowed November 12, 1903, and appellant was allowed until the first day of the February term, 1904, of said court, in which to file its bill of exceptions; but the record discloses that it was not filed until February 23, 1904, which was the second day of the February term, and the record does not show an extension of time was granted for filing same.

On motion, the Kansas City Court of Appeals transferred the cause to this court, because a constitutional question is involved herein.

I. The bill of exceptions was not presented and filed within the time allowed by the court. While February 22d was a public holiday, yet the mere fact the first day of the February term, 1904, of said court fell on a holiday was no legal excuse for appellant’s failure to file the bill on or prior to that day. [Stewart v. Brown, 112 Mo. 171-182; In re Charles Greene, 86 Mo. App. 216-223; State v. Green, 66 Mo. 644.]

The bill of exceptions not having been filed in time, there is nothing presented to this court for review, except the record proper. [Linahan v. Barley, 124 Mo. 560; Priddy v. Hayes, 204 Mo. 358.]

II. One of the grounds assigned for the arrest of the judgment was, that the petition does not state facts sufficient to constitute a cause of action against the appellant, and the objection to the sufficiency of the petition is renewed here. That objection raises a jurisdictional question which can be raised here for the first time and need not be by way of exception. [State ex rel. v. Griffith, 63 Mo. 545; Bums v. Patrick, 27 Mo. 434; Andrews v. Lynch, 27 Mo. 169; Ivory v. Carlin, 30 Mo. 142.]

Regarding the question in hand, the appellant takes the position that cutting the trees, located upon a public street, by the Telephone Company, was not a damaging of the private property of respondents for public use within the. meaning of article 2, section 12, of the Constitution of 1875. That whenever the city acquires a street, avenue, or any other public highway, either by condemnation, grant or dedication, it may be applied to all the purposes consistent with the purposes for which it was acquired, and that it is only when a street is subjected to a new burden inconsistent with and subversive of its proper use as a street that the abutting property-owner can complain. It also contends that the erection and maintenance of telephones are a proper use of a street. The owner of the adjoining premises cannot claim damages resulting thereto from user of street, and cite the following authorities in support of that contention: Julia Building Assn. v. Bell Telephone Co., 88 Mo. 258; Ferrenbach v. Turner, 86 Mo. 416; Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 82 Mo. 121; Dillon, Mun. Corp. (3 Ed.), sec. 690; West v. Bancroft, 32 Vt. 367.

We do not understand that the respondents controvert the rule above contended for by appellant in a proper case. Their answer to this contention is, that the appellant did not allege or prove that it had any right or authority whatever to occupy the streets of Liberty for the use of its cables, or other corporate property, but contend that it is a trespasser upon the streets of that city. There is nothing in this record to show the city of Liberty ever granted the appellant a franchise or a license to conduct a telephone business in that city, or authorized it to use or occupy its streets with its poles, wires and cables. In the absence of such a showing, the appellant is in no position to contend that the uses to which it is putting the streets are consistent with the purposes for which they were acquired. The mere fact that the city has the authority to use its streets for such purposes, or that it has the power to delegate that right or privilege to others will not avail appellant, without it first shows the city has granted that right and privilege to it. If it was a trespasser in the performance of the acts complained of by the respondents, then it cannot shield or defend itself behind the plea that the city had the power to delegate that right to it.

The very cases cited by appellant and relied upon as authority for cutting the trees disclose the fact that the acts complained of in those cases were expressly authorized and granted by ordinances duly enacted by the cities named therein, which is not true in this case, and for that reason they are not applicable here.

III. According to the laws of this State, the property owners in cities, towns and villages own the land to the center of the adjoining street, subject to the easement of the city. It has the right to subject the street to any and all of the uses or purposes for which the street was acquired; but until it does so subject it to one or more of those uses, or so long as he and the city'can jointly occupy and use the street without doing “violence to the full, free and complete exercise of the public easement,” he is to that extent just as much the owner of the property to the center of the street as he is of the remainder of the lot, and has the same right to use it in any manner for any purpose he may see proper, not inconsistent with the rights of the public. [St. Louis v. St. Louis Theatre Co., 202 Mo. 690.]

Among the many rights the lot-owner has in the street, if not expressly prohibited by the city, is to plant and grow shade and ornamental trees along the edge of the sidewalk in. front of his property. This is a very valuable right. As a rule shade and ornamental trees are very desirable in front of residence property. They contribute no little to comfort and enjoyment of the home. Not only that, shade trees of a great city are highly conducive to the public health, comfort, enjoyment and well-being of her citizens. On that account most of the cities of the State encourage the property-owners to plant and grow such trees in front of their property, and pass laws protecting the trees from injury, and prescribe penalties for those who do injury to them.

No one has the right or power to deprive the property-owner of those trees, or his right to maintain them in the street except the city itself, or such as it may lawfully authorize. Even that power of the city is not absolute. It must exercise it with prudence and within reason, and not wantonly and wilfully. [St. Louis v. St. Louis Theatre Co., 202 Mo. 690.]

It would be no less startling than it would be novel to hold that the public service corporations have the power, right and authority to mutilate, damage or destroy the shade and ornamental trees growing upon the streets of our cities, at pleasure, without some authority, general or special, granted to them by the city in harmony with and recognizing the rights and interest of the property-owners in and to the trees, whatever those rights may be.

The petition stated a good cause of action, and we find no error in the record proper.

IV. The questions as to how the city, or the company acting under authority from the city, can remove such trees "when they interfere with the public, and how the owner’s damages are to be ascertained and paid when taken, are not before this court at this time, and we will not express an opinion thereon. “Sufficient unto the' day is the evil thereof. ’ ’

For the reasons before stated, the judgment is affirmed.

All concur.