ately on the death of the testatrix, and loaned at interest for the benefit of the legatee, shows that the intention of the testatrix was that the gift should immediately vest on her death, and that the payment only was to be postponed. Hanson v. Graham, 6 Ves. Jr. 233; Everett v. Mount, 22 Ga. 323; Felton v. Sawyer, 41 N. H. 202. We conclude that the intention of the testatrix was to devise $800 to Walker, to vest immediately on her death, and affirm the judgment.

1. Where a contract for the sale of land provided that the purchaser should assume a certain incumbrance, and he subsequently tendered the vendor a deed for execution, which ran to a third party, and contained no assumption of the incumbrance, but merely a recital that it was made "subject to a certain deed of trust,' there was no performance by the vendee, so as to entitle him to an action for breach on the vendor's failure to convey.

2. Where, in an action by the vendee of land for breach of the contract to convey, the vendee specifically alleges that he has offered to perform and had performed his agreement in all respects, and the vendor answers by general denial, and also sets up inability to make a deed for the reason that the title was in his wife, and he could not get it, the answer does not relieve plaintiff from the necessity, as prerequisite to recovery, of showing performance on his part.

3. Where a contract for the sale of land required the purchaser to assume a certain incumbrance, and he tendered to the vendor for execution a deed to a third party, in which no incumbrance was assumed, and he made no further attempt to perform, and the vendor refused to convey on grounds other than the failure of the vendee to perform, there was no waiver of the vendee's failure, the vendee having made no effort to comply with the contract and having made a proposition entirely foreign thereto.

Appeal from circuit court, Jackson county; Wm. B. Teasdale, Judge.

Action by James Burns against Nicholas M. Freling. From a judgment for plaintiff, defendant appeals. Reversed.

Warner, Dean, McLeod & Holden, for appellant. Johnson & Lucas, for respondent.

ELLISON, J. This is an action for damages on account of an alleged breach of written contract for the sale of real estate. Plaintiff recovered judgment in the trial court.

It appears that the land was owned by defendant's wife, and that plaintiff addressed a written communication to her agents proposing "to purchase the following property, lot 13, block A, in Pratt's addition to *Rehearing denied February 28, 1903.

the city of Kansas at and for the sum and price of $3,000, payable as follows: I agree to assume an incumbrance now on the property of $1,600, and pay $1,400 cash at the delivery of a good and sufficient deed of general warranty to the property." There were other stipulations not necessary to notice. The paper was signed by plaintiff, and defendant wrote the words, "Accepted July 27th, 1898," and signed his name. Defendant insists that the action must fail by reason of the statute of frauds. His position is that the property is not identified in the paper, in that it fails to name a county and state in which it is located. He claims that it is necessary that the description of the property should appear in the paper with such clearness that it can be identified, and that this essential cannot be supplied by parol testimony; citing the cases of Ringer v. Holtzclaw, 112 Mo. 519, 20 S. W. 800; Rucker v. Harrington, 52 Mo. App. 481; Carrick v. Mincke, 60 Mo. App. 140; Weil v. Willard, 55 Mo. App. 376; Miller v. Goodrich, 53 Mo. App. 433; Fox v. Courtney, 111 Mo. 150, 20 S. W. 20; Boyd v. Paul, 125 Mo. 9, 28 S. W. 171; Kelly v. Thuey, 143 Mo. 422, 45 S. W. 300. Since another point made by defendant is deemed by us to be clearly fatal to plaintiff's case we need not pass upon the one just stated. That point is this: By the nature of the action it was necessary for plaintiff to have been ready and willing, and he should have offered, to perform his part of the terms of the contract. He should have offered to assume the payment of the $1,600 incumbrance. It is conceded that the mode of assuming was to be by a clause in the deed to be executed for the property by defendant's wife. His readiness and willingness and offer to perform was at least a contemporaneous act, with a performance by defendant of the obligations on his part. Plaintiff not only did not offer to perform, but he took such affirmative action as released defendant from any further obligation. He himself had the deed written out which was to convey the property, and, instead of being a deed to him, wherein he assumed the payment of the incumbrance, it was a deed to his sister-in-law, Barbara Fitzpatrick, in which there was no clause assuming the incumbrance by any one, but merely a recital that the deed "is made subject to a certain deed of trust." This was not a mere matter of mistake, misunderstanding, or inadvertency, but it was the deliberate act of the plaintiff, in effect throwing up the contract he had made by substituting some other performance. And, more than that, there was no attempt or offer made to retract, or recede from such position. Defendant had a right to have this plaintiff assume the obligation. It was an obligation personal, which was not performed by substituting some one else; so that, even if there had been a clause whereby Mrs. Fitzpatrick assumed the incumbrance, it

I would not have filled the contract. When defendant accepted plaintiff's agreement that he (plaintiff) would assume the incumbrance, it is to be presumed that he relied upon plaintiff's willingness to perform his contracts, and such condition of solvency that he could be made to perform them. It would be altogether without reason to say that he had a right to substitute a stranger. But it is said that defendant did not refuse to execute the deed on the ground just considered. The evidence tends to show that he refused on two grounds: One was a question about taxes, and the other that the deed was to be between "me and Mr. Burns; the other party I knew nothing about." There is an apparent difficulty in disposing of the case as above from a consideration of defendant's answer, wherein he states, among other things, after a general denial, his inability to make a deed for the reason that the title was in his wife, and that he could not obtain it. But we conclude that this does not relieve the plaintiff of the case he has made for himself. The general denial put him to the proof of his case, and the record discloses that he assumed it, though he failed. He specifically states in his petition, as a condition to his right of recovery, that he had offered to perform the agreement "upon his part in all respects," and that "he offered to assume said incumbrance." In other words, he stated the necessary facts giving him a right of action, but the uncontradicted evidence is that he did not offer to assume the incumbrance, or to accept a deed to himself. There is no evidence that he was informed by defendant that no deed would be made in any event. Defendant's answer is a matter transpiring long after plaintiff claims to have laid the foundation of his case by his offer of performance. It is clear that plaintiff has been allowed to recover a judgment in the face of his petition and in direct contradiction thereof. Manifestly, the judgment should not be allowed to stand. Where a party prepares a deed for another to sign in pursuance of a contract to that effect, and the deed is not such as the contract called for, yet, if the vendor refuses to sign for specific causes, and omits to mention other causes which he rightfully might have urged, and which, if urged, the other party would have acted upon and remedied, he will be considered as waiving such other causes, unless the circumstances show it was not so understood. If one, in attempting to comply with the contract, intended his omission of some essential matter as an ultimatum, then the matter of waiver has no application; for waiver, in this respect, is founded on estoppel in pais. It presupposes that, if the matter had been mentioned as an objection, it would have been obviated by the other party. But in point of fact the suggestion just made has no applica

tion to the facts of this case. In this case there was not only no offer made to comply with the contract, but no attempt was made in that direction. On the contrary, plaintiff came to defendant with a foreign proposition in toto. He came to him with a proposition to make a sale to a stranger on terms radically unlike the contract, and yet brings an action on the contract alleging an offer of full performance.

The judgment is reversed. All concur.

STROTHER v. DE WITT et al.* (Court of Appeals at Kansas City, Mo. Feb. 2, 1903.)

WORK AND LABOR-IMPLIED CONTRACT-RECOVERY-BENEFICIAL INTEREST-INTENTION -ACCEPTANCE OF BENEFIT-INSTRUCTIONS. 1. Where an act done by one is beneficial to another, a subsequent assent of the beneficiary is sufficient evidence to authorize a finding of a previous icquest on his part.

2. Such assent may be inferred from knowledge of the beneficial act, or silent acquiescence therein.

3. Where one voluntarily does an act or renders service for another without any iutention to charge therefor, or an understanding that the other shall pay, he cannot recover for his service.

4. Whether a beneficial act done or services rendered was intended as a gratuity or not is a question for the jury, under all the circumstan

ces.

5. A petition alleged that plaintiff built a house on defendant's land, and that "at the time the house was erected" it was the intention of plaintiff and defendant that the latter should repay plaintiff for so doing. Held not error to instruct that the jury must find that defendant expected and knew he was to pay for the house when it was built, rather than at the time it was received, since such requirement conformed to the express allegations of the petition.

6. Where plaintiff sued for moneys expended in building a house on defendant's land, alleging that it was the intention that he should be repaid therefor, and the answer was a general deuial, and defendant's counsel, during the trial, admitted that most of the money that went into the house was paid by plaintiff, such admission did not change the issues made by the pleadings, but only rendered it unnecessary for plaintiff, in making out his prima facie case, to offer proof of such admitted fact.

7. Where plaintiff sued to recover for moneys expended in building a house on defendant's land on an understanding that he should be repaid therefor, and the answer was a general denial, and there was no plea in the nature of a confession and avoidance, to the effect that the house was a gratuity, but evidence which would have properly been admissible only under such a plea went in without objection, and certain instructions of plaintiff's requested the submission of the issue on the theory that the defense pleaded was a confession and avoidance, plaintiff could not complain that it was error for the court to give defendant's instructions embodying a like the

Action by John D. Strother, as administrator of the estate of Daniel Gattel, against J. Andrew De Witt and another. From a judgment for defendants, plaintiff appeals. Reversed.

J. Allen Prewitt, for appellant. Paxton & Rose, for respondents.

SMITH, P. J. Action indebitatus assumpsit. The petition alleged that one Daniel Gattel, in his lifetime, at the special instance and request and for the use and benefit of defendants, built and erected upon their real estate a one and one-half story house, with other appurtenant improvements, of the value of $1,500, and that, at the time said dwelling house was erected and said improvements were made, it was the intention of the said Gattel and the defendants that the latter should repay said Gattel whatever amount he should lay out and expend in their behalf, and that the defendants did so receive the same; that said defendants refused to pay said Gattel, or the plaintiff, his administrator, the amount so laid out and expended, etc. The answer was a general denial. There was a trial, wherein the defendants had judgment, and plaintiff appealed.

The errors assigned for the reversal of the judgment relate mainly to the action of the trial court in giving and refusing instructions. The plaintiff insists that the first, second, and third instructions requested by him should have been given. The correctness in expression of the plaintiff's first and second may be well questioned, in view of the rulings of the supreme court in the case of Watkins v. Richmond College, 41 Mo. 302; but, if correct, it was not harmful error to refuse them, since his third, which the court, sua sponte, modified, and then gave, in its modified form, was similar in expression to his first and second. It instructed the jury that "if you find from the evidence that plaintiff's decedent, Daniel Gattel, built or erected, or caused to be built or erected at his own expense, a dwelling house or other improvements on land claimed by defendants, and that defendants consented to and accepted the same, and thereafter took possession of such dwelling house and other improvements, then you will find for plaintiff in such sum as you believe from the evidence said Gattel may have so paid out or expended, unless you further find by a preponderance of the testimony that said Gattel expended such money without any intention of charging therefor, or that the defendants did not expect to be charged therefor." This instruction, when taken in connection with the first and third given for the defendants, but for the error hereinafter noticed, correctly submitted the issue to the jury.

The

you can find for the plaintiff, you must find from the evidence that at the time Daniel Gattel built the house in controversy, he intended to charge for it, and intended that these defendants should pay him for it, and that the defendants at that time expected and knew that they were to be charged for it"; and (2) "that the law does not imply a contract between the defendants and Daniel Gattel that they were to pay him for building the house in question merely from the fact that the house was built on defendants' land, and, before you can find for plaintiff, you must find from the evidence that Gattel, at the time he built said house, intended to charge defendants for it, and that defendants expected to be charged for it, and that defendants agreed to pay for said house by an express promise, or by conduct from which Gattel might reasonably have inferred a promise to pay for said house." The law is very well settled in this state that, where an act done is beneficial, the subsequent assent of the beneficiary will be sufficient evidence from which the jury will be authorized in finding a previous request. Nor is it in all cases for plaintiff to prove an express assent of the defendant, to enable the jury to find a previous request. They may infer it from his knowledge of the plaintiff's acts, or his silent acquiescence. Kerr v. Cusenbary, 60 Mo. App., loc. cit. 563, and cases there cited. The rule is that when a party voluntarily does an act or renders service, and there was no intention at the time that he should charge therefor, or understanding that the other should pay, he will not be permitted to recover, for that which was originally intended as a gratuity cannot be subsequently turned into a charge. Kerr v. Cusenbary, supra; Penter v. Roberts. 51 Mo. App. 227: Hughes v. Vanstone, 24 Mo. App. 641; Kammerman v. Wiggington, 70 Mo. App. 476; Louder v. Hart, 52 Mo. App., loc. cit. 381; Buelterman v. Meyer. 132 Mo., loc. cit. 481, 482, 34 S. W. 67; Watkins v. Richmond College, 41 Mo. 302; Hart v. Hess, 41 Mo. 441; Morris v. Barnes, 35 Mo. 412; Napton v. Leaton, 71 Mo., loc. cit. 369, 370; Bank v. Aull's Adm'rs, 80 Mo. 199; Guenther v. Birkicht's Adm'r, 22 Mo., loc. cit, 439. And whether a beneficial act done or services rendered in any case was intended as a gratuity is always a question for the jury to determine under the circumstances disclosed by the evidence.

In the present case the evidence was ample to justify the giving of the defendants' instructions, and which we think, in the light of the precedents just cited, were proper. Nor do we sustain the contention that defendants' first instruction was erroneous because it required the jury to find that they (defendants) expected and knew that they were to pay for the house at the time it was built, instead of at the time it was received.

for this requirement, as has been seen, conformed to the express allegations of the petition, and was therefore clearly within the limits of the issues made by the pleadings.

The plaintiff further contends that the answer being a general denial, and not a plea in the nature of a confession and avoidance, or, in other words, since the answer did not confess that the house was built at the defendants' request, and then plead an avoidance of a liability therefor,-that it was built out of kindness or good will, and was therefore a gratuity, the defendants' instructions were improper, under the pleadings. And just here, it may not be out of place to say that the admission made by defendants' counsel during the progress of the trial that most of the money that went into the house was paid by Gattel did not change the issues made by the pleadings, but only rendered it unnecessary for plaintiff, in making out his prima facie case, to offer proof of this admitted fact. As the facts disclosed by the evidence turned out to be at the trial, we have no doubt that the answer should have pleaded a confession and avoidance, but since the evidence which would have been only properly admissible under such a pleaded defense went in without objection, and since the plaintiff's first and second instructions requested the submission of the issue upon the theory that the defense pleaded was that of a confession and avoidance, plaintiff cannot now be heard to complain that it was error for the court to give defendants' instructions embodying a like theory. If it was error to give the latter, it was invited by the plaintiff. And under such circumstances, plaintiff must be held to have waived the formal plea of a confession and avoidance. Ziekel v. Douglass, 88 Mo. 382; Madison v. Ry. Co., 60 Mo. App., loc. cit. 608, 609; Stewart v. Goodrich, 9 Mo. App. 125.

But plaintiff objects that the concluding words of the instruction given by the court on its own motion which are, "or that the defendants did not expect to be charged therefor," in effect told the jury that, even though Gattel intended to charge for the house at the time he built it, if the defendants did not expect to be charged, there was no liability. This instruction, as has been seen, in substance told the jury that if Gattel caused the house to be built at his own expense, and the defendants consented thereto and took possession thereof, it should find for plaintiff, unless the defendants did not expect to be charged therefor. While it did declare that there could be no recovery if Gattel expended the money without an intention to charge therefor, it does, in effect, declare that, even if the plaintiff did make the expenditure under such circumstances as the law would imply a promise or undertaking on the part of the defendants to pay therefor, yet there could be no recovery if they did not expect to pay therefor. Where

such a promise or undertaking is implied, it can be overcome in only one of two ways that is to say, by proving either that it was not the intention of the donor at the time to charge, or that there was a mutual understanding, express or implied, that no charge was to be made. This we take to be the result of the authorities to which we have already referred. If the disjunctive words of the instruction had been omitted, it would have been well enough; but, with them, we think it was faulty, and should not have been given.

There are other errors assigned in relation to the conduct of counsel during the argument of the case before the jury, and to that of the jury after they had retired to consider of their verdict, which, in view of the conclusion just expressed, need not be noticed.

For the error of the court in modifying plaintiff's instruction, and then giving it as its own, the judgment must be reversed, and the cause remanded. All concur.

MEMORANDUM DECISIONS.

JONES v. COMMONWEALTH. (Court of Appeals of Kentucky. Jan. 28, 1903.) Appeal from circuit court, Bell county. "Not to be officially reported." Hiram Jones was indicted for placing obstructions on a railroad track, thereby causing a wreck, and from an order "filing away" the indictment he appeals. Reversed. Smith & Ingram and Wm. Low, for appellant. Clifton J. Pratt and M. R. Todd, for the Commonwealth.

SETTLE, J. In this case appellant was indicted in the Bell circuit court for placing an obstruction on the tracks and switches of a railroad in operation, and thereby causing the engine and cars of a train to be upset and thrown from the track. The record presents a state of facts and questions of law identical, except as to the offense charged, with those presented by the record in Jones v. Commonwealth (the same parties) 71 S. W. 643, this day decided, and this case is reversed for the reasons given in the opinion in that case, with direction to the lower court to proceed upon the return of the case as in that opinion ordered.

LOUISVILLE & N. R. CO. v. COMMONWEALTH. (No. 84.) (Court of Appeals of Kentucky. Feb. 11, 1903.) Appeal from circuit court, Marion county. "Not to be officially reported." The Louisville & Nashville Railroad Company was convicted of unlawful discrimination in transportation charges, and appeals. Reversed. W. C. McChord, E. W. Hines, T. B. Harrison, Jr., and B. D. Warfield, for appellant. H. W. Rives, for the Commonwealth.

BARKER, J. This case, being identical in all respects with case 86 (Louisville & N. R. Co. v. Commonwealth, 71 S. W. 910), is reversed for the reasons given in the opinion therein.

HOBSON, SETTLE, and NUNN, JJ., dis

sent.

LOUISVILLE & N. R. CO. v. COMMONWEALTH. (No. 92.) (Court of Appeals of Kentucky. Feb. 11, 1903.) Appeal from circuit court, Marion county. "Not to be officially reported." The Louisville & Nashville Railroad Company was convicted of unlawful discrimination in transportation charges, and appeals. Reversed. W. C. McChord, E. W. Hines, T. B. Harrison, Jr., and B. D. Warfield, for appellant. H. W. Rives, for the Commonwealth.

BARKER, J. This case, being identical in all respects with case 86 (Louisville & N. R. Co. v. Commonwealth, 71 S. W. 910), is re-. versed for the reasons given in the opinion therein.

HOBSON, SETTLE, and NUNN, JJ., dis

sent.

STATE v. YANKEE. (Supreme Court of Arkansas. Dec. 6, 1902.) Appeal from circuit court, Ouachita county; Charles W. Smith, Judge. J. A. Yankee was indicted for malicious mischief, and from an order sustaining a demurrer to the indictment the state appeals. Reversed. J. M. Barker and Geo. W. Murphy, Atty. Gen., for the State.

BATTLE, J. This case is governed by the decision of the case of State v. Culbreath (No. 822, just determined) 71 S. W. 254. Reversed and remanded, with directions to overrule the demurrer and proceed in the trial of the cause not inconsistently herewith.

(Su

WESTMORELAND v. MCCLENDON. preme Court of Arkansas. Jan. 3, 1903.) Appeal from Garland chancery court; Leland Leatherman, Chancellor. Action to foreclose a chattel mortgage by J. W. Westmoreland against J. W. McClendon and another. From a judgment awarding priority to McClendon's mortgage, plaintiff appeals. Affirmed. Greaves & Martin, for appellant. C. V. Teague, for appellee.

HUGHES, J. This is an action begun by the appellant against Betsy Jane Dawson, as sole heir and distributee of J. N. Webb, deceased, to foreclose a chattel mortgage executed to appellant by the said Webb on October 18, 1894, which was duly filed in the office of the recorder of Garland county on October 18, 1894. The appellee, J. W. McClendon, was made a defendant in the action as junior mortgagee. The defendant Betsy Jane Dawson did not answer; but the appellee answered, alleging that appellant's mortgage was void for uncertainty, and also claiming title to the property, denying that Webb ever owned it, and alleging that he (appellee) purchased the property prior to the mortgage to appellee, and that he made a conditional sale of it to the said Webb, reserving title to himself until paid for by Webb, and that Webb had never paid but $500 on the purchase price, which was $2,750. The appellee also filed his substituted answer, in which he set up that Webb purchased an undivided one-half interest in said property, title to remain in appellee until paid for, and that there was still due appellee from Webb $

which was more than one-half interest in said property. After considering the evidence in the case, the chancellor made the following finding and decree in the case: "The court, in its decree, found as matters of fact: That Webb, on October 16, 1894, executed the mortgage sued on, to secure the indebtedness of $500, that has never been paid, and that said mortgage was duly filed in the office of the clerk of the circuit court on October 18, 1894. That on September 30, 1894, appellee bought the property from R. B. Worrell, and sold same to Webb, reserving title until paid for.

That Webb paid only part of the purchase price. That. prior to purchase of property from Worrell, appellee and Webb agreed that Webb should execute a mortgage to appellee to secure payment of the purchase price, and a mortgage was drawn in pursuance thereof; but, finding that the property could not be insured in that way, it was agreed between them that appellee should sell it to Webb and reserve title in himself. The said agreement was made to secure the payment to defendant McClendon of the unpaid purchase price, and should be treated in equity as a mortgage, but superior to the chattel mortgage held by appellant. Ordered, that an account be stated by the master and for sale of the property, proceeds to be paid in satisfaction of appellee's debt, and balance, if any, to be paid to appellant." There is conflict in the evidence in this case; but there is positive testimony to support the chancellor's finding, which is persuasive, and we do not find that the decree is so clearly against the weight of the evidence as to warrant this court in reversing it. It is therefore affirmed.

SAME v. SAME v. SAME v.

PENISTON et al. v. UPSHAW. MEYER. SAME v. HAASE et al. CARONDELET FOUNDRY CO. FOSTER. SAME v. FRUEND et al. SAME v. HILDEBRAND. (Supreme Court of Missouri, Division No. 1. Dec. 24, 1902.) Actions by Thomas Peniston and others against Ira W. Upshaw, against Andrew Meyer, against Edwin P. Haase and others, against the Carondelet Foundry Company, against Albert Foster, against Louis F. Fruend and others, and against John Hildebrand. From judgments in favor of defendants in each case, plaintiffs appeal. Affirmed.

MARSHALL, J. These cases are similar to the case of Thomas Peniston et al. v. Christian Schlude (No. 10,490, just decided) 71 S. W. 146, except that different parcels of land are involved and the defendants are different. The decision in the Schlude Case is equally applicable to these cases, and for the reasons given in that case the judgments of the circuit court in these cases are affirmed. All concur.

STATE v. HITE. (Supreme Court of Missouri, Division No. 2. Feb. 3, 1903.) Appeal from circuit court, Henry county; G. V. Berry, Special Judge. John P. Hite was convicted of crime, and appeals. Affirmed. Peyton A. Parks and C. C. Dickinson, for appellant. Edward C. Crow, Atty. Gen., for the State.

GANTT, J. An indictment was preferred at the January term, 1901, of the circuit court of Henry county, against the defendant, for defiling a female, under the age of 18 years, who was at the time confided to his care and protection. The defendant was duly arraigned, and pleaded not guilty. He was tried at the September term, 1901, and the jury found him guilty, and, after his motions for new trial and in arrest were overruled, he was duly sentenced in accordance with the verdict. He obtained leave to file a bill of exceptions at the January term, 1902, but failed to avail himself of that privilege, and accordingly there is nothing before us, save the record proper, in which we find no error whatever; and the judgment and sentence of the circuit court is therefore affirmed. All concur.

STATE v. HUNTER. (Supreme Court of Missouri, Division No. 2. Jan. 9, 1903.) Appeal from circuit court, Cass county; Geo. Longan, Judge. S. R. Hunter was convicted of unlawful sexual intercourse with a girl over 14 and under 18 years of age, and he appeals. Affirmed. A. L. Graves and W. Ď.