1 not have equity,' and, in accordance with it, it is the settled rule that 'a party bargaining with a debtor with fraudulent intent does it at the peril of having that which he receives taken from him by the creditors of the debtor whom he is attempting to defraud, without having any remedy to recover what he parts with in carrying out the bargain.' Wait, Fraud. Conv. § 192; Railroad Co. v. Soutter, 13 Wall. 517, 20 L. Ed. 543; Pettus v. Smith, 4 Rich. Eq. 197. Mrs. Millington must be left in the snare her own devices have laid." Having, as we believe, demonstrated that the money paid to the McNairs by Shyrack became the property of the McNairs, disassociated from the goods, and without either legal or equitable claim to it by Shyrack, it follows that it should be looked upon as any other money of McNairs, arising from any other source. This being true, when they, as debtors of the defendant bank, paid their debt to the bank with this money, and if the bank received it with reasonable cause to believe a preference was intended, the payment came under the influence and control of the bankrupt law. The judgment should therefore be reversed, and the cause remanded. On Motion for Rehearing. PER CURIAM. The only objection to the foregoing opinion which we care to notice by further comment is that taken to the statement that there was substantial evidence having a tendency to show that defendant had reasonable cause to believe that a preference was intended when the $1,200 was paid. We have gone over the evidence again, and find that we were abundantly justified in making that statement. We will not attempt to set out such evidence, but will merely refer to some of the more important portions: In the first place, the defendant, through its chief officer, had every opportunity to learn and know the financial condition of the McNairs. The defendant was a bank, and the plaintiffs were merchants in the same town; their respective places of business being near to each other. The McNairs did their banking business with defendant. They became borrowers of defendant from the start, and continued so to the end. Daniel McNair (the principal one to be considered) had some land in Johnson county, which was under mortgage. His residence was in his wife's name, and so was a certificate of stock in a bank at Holden for $1,000. The firm's bank account was dotted all through with overdrafts, and from beginning to the end showed an unprosperous merchant. The balances, almost without exception, were small, until at the end the balance was merely nominal,-a few cents. We readily understand that small balances may be appropriate to small mer chants, and that they need not necessarily indicate decline in financial condition. But those exhibited in the record ought not to encourage belief in the mind of a reasonable man that the owner of such account could, with safety to himself, borrow more than $2,000, especially when the borrower's chief possessions were either mortgaged or in his wife's name. At the time the McNairs began to become indebted to the bank, in April, 1898, the stock of goods invoiced (or at least it was so represented to the bank) the sum of $4,300; yet in about 20 months thereafter, with triple increased debt to defendant, it was sold for $1,500. The first loan to the McNairs was made in April, 1898, for $500; the second was in June, 1898, for $1,200; and the third, for $400, was made in April, 1899. The first one was not paid, but renewed along until December 22, 1899. The last one was renewed until December 5th, when the $300 was paid, and the bal ance, $100, was paid December 22d. The second one, for $1,200, was paid on December 30th from money realized on the sale of stock, and represents the sum in controversy. The date of the McNairs' last balance, 24 cents, was December 9th. They made no further deposits. The defendant, through its chief officer, was urging payment of this indebtedness-in all, $2,100-through the month of December, yet some of it was not due; that is, the time of last renewal had not expired. He succeeded in collecting the two smaller notes, and then, finally, the large one. Defendant's officer knew that in April, 1898, the stock was valued at $4,300. knew that at the last of December, 1899, less than two years thereafter, it had become reduced to $1,500; and this with an increasing debt, and a bank account become extinct. We have not referred to all the testimony and circumstances bearing on the point, but have said enough to indicate what kind of evidence we deem material as tending to support the affirmative of the issue that defendant had reasonable cause to be lieve that a preference was intended when it received the payment in controversy. It the trial court sustained a demurrer on the ground that there was no evidence tending to sustain that issue, the effect of such ruling would be to say that the evidence to which we have called attention, and other of like kind, was not worthy of consideration. This we would regard as error. The motion is overruled. WILSON v. GRAY. He (Court of Appeals at St. Louis, Mo. Jan. 20, 1903.) INJUNCTION-SALE UNDER DEED OF TRUSTPETITION. 1. A petition alleging that plaintiff is the owner of certain real estate; that some years before a person named conveyed said land in trust; that afterward defendant trustee under such deed was advertising the land for sale in a certain newspaper, which was not a newspaper in which such sales could be advertised under the law; and that a sale would cast a cloud on plaintiff's title,-states no cause of action for injunction to restrain such sale, it not appearing what was the character of the trust in the instrument, apparently unrecorded, or the nature of the advertisement, or how such sale would affect plaintiff's title. Appeal from St. Louis circuit court; Warwick Hough, Judge. Action by M. A. Wilson against P. W. Gray. From a judgment in favor of defendant, plaintiff appeals. Affirmed. E. Douglas Andrews, for appellant. John O. Marshal, for respondent. REYBURN, J. On December 19, 1901, this action was begun by filing in the office of the clerk of the circuit court of the city of St. Louis the following petition: "Said plaintiff, for cause of action against said defendant, says that he is the owner of the following described real estate situated in the city of St. Louis, Missouri, to wit: [Omitting the description of the realty, the pleading proceeds:] And that on the 10th day of September, 1890, one Jennie Clark, single, executed to Robert Rutledge, trustee for one Claude Kilpatrick, her certain deed of trust of that date, whereby she conveyed said lands to said Robert Rutledge, in trust for the benefit of said Claude Kilpatrick; that afterward the said defendant was duly appointed trustee under said deed of trust, and is now advertising said lands to be sold thereunder on the 30th day of December, 1901, in a daily newspaper called the St. Louis Real Estate Bulletin, and, unless restrained by order of this court, said defendant herein will on said day sell the same; that said newspaper is not such a newspaper as is contemplated by the law in which advertisements for sales of lands under deed of trust can be made, for the reason that said paper is not a newspaper of general circulation, but its circulation is limited to the city and county of St. Louis, Missouri, and confined almost exclusively to real estate men, money loaners, contractors, and builders; that a sale of said lands under said advertisement will cast a cloud upon the title of said plaintiff herein, and cause a multiplicity of suits, and he is without legal remedy. Wherefore plaintiff prays that said defendant may be temporarily enjoined and restrained from selling said lands, or further advertising the same for sale in said St. Louis Real Estate Bulletin, and that upon a final hearing of said cause said order may be made perpetual, and that plaintiff have all further relief." This petition was verified before a notary in manner following: "M. A. Wilson, being first duly sworn, on her oath says that she is the plaintiff in the above-entitled cause, and that the matters stated in the foregoing petition are true. M. A. Wilson, by L. R. Wilson, Her Attorney in Fact." On the 21st day of December following, plaintiff's application for a temporary injunction was submitted upon an agreed statement of facts between the plaintiff and defendant, as follows: "It is hereby stipulated and agreed that the St. Louis Real Estate Bulletin is printed and published in the English language; that said publication claims to be and is a daily newspaper devoted to the real estate and kindred interests of the city of St. Louis; that it is issued every week day as a compendium of the wants, offerings, loans, delinquent tenants, new property on the market for sale, real estate transfers, building permits, with a special Saturday edition containing the rent and sale lists of the real estate agents, classified and arranged for the convenience of the public; that said publication has a large circulation in the city of St. Louis, and a limited circulation in the county of St. Louis, Missouri; that the price thereof is not nominal, but fixed and adhered to; that the circulation is not confined to any particular trade, but it circulates generally among the real estate men, money loaners, contractors, builders, lawyers, merchants, manufacturers, and other property holders; that of the Saturday edition of said publication a large number of copies is for the guidance and convenience of the public seeking desirable rental property, placed for free distribution in each of the drug stores in the city of St. Louis. It contains daily a number of items of news of special interest to those interested in real estate and kindred subjects. It also contains daily a list of conveyances of real estate, deeds of trust filed, building permits, landlord summons suits, and special notes of doings of the St. Louis Real Estate Exchange. It also contains each day a large number of classified advertisements under the head of 'Business Directory.' It is also agreed that the copies hereto attached are fair specimens of said publication." On the same day the plaintiff's application for a temporary injunction against the defendant was denied by the court, and at the ensuing April term the cause was submitted upon the pleadings and above agreed statement, and the court dismissed plaintiff's bill. If any specimens of the paper in question in 'which the advertisement was being inserted were submitted to the trial court, as contemplated or called for by the agreed statement, they were not incorporated in the record in this court. In the briefs filed opposing counsel treat the question whether the publication in question was a newspaper within the meaning of that section of the statute controlling mortgages or deeds of trust with power of sale as the decisive issue; but under the view taken by this court it is unnecessary to consider this proposition for a disposition of this case. Neither the petition nor the agreed statement of facts, which was the only proof or substitute for legal proof submitted to establish the allegations of the petition, show any right of action, or establish any cause of action in plaintiff. The petition is vitally defective, and signally fails to embrace allegations essential to show any right of action in plaintiff. It does not appear what was the character of the trust in the trust instrument, apparently unrecorded, nor does it appear what was the nature of the alleged advertisement, nor is it alleged how such advertisement, if matured by a sale, would affect plaintiff's title. Defendant filed on February 6, 1902, by way of answer, a general denial, but no evidence or proof of ownership of the realty in question, nor of the advertisement, nor in support of any other allegations, appears to have been offered, except as set forth in the incomplete stipulation or agreed statement of facts. If the sole issue controverted was the inquiry whether the publication named was a newspaper, by the recitals of the agreed statement the parties hereto have answered this as between themselves for the purposes of this proceeding, and so nothing remained to be tried, and the judgment of the lower court in dismissing the bill was correct, and is affirmed. BLAND, P. J., and GOODE, J., concur. ROSS-LANGFORD v. MERCANTILE (Court of Appeals at Kansas City, Mo. Dec. 1, 1902.) INSURANCE-MISDESCRIPTION IN APPLICATION-ACT OF COMPANY'S AGENT -ESTOPPEL. 1. Plaintiff, owning a dwelling, one room of which was used as a millinery store, told this to the agent of defendant insurance company; and he said that it was to be described in the application as a dwelling, and he so described it there. By her application she warranted the building was occupied as a dwelling. The policy provided, if insured misrepresented in writ ing any material fact concerning the subject of the insurance, it would be void, and that no representative of the company should have power to waive any provision of the policy, except such as it authorized by agreement, and then only by writing thereon. Rev. St. § 8091, a part of defendant's charter, provides that no representative shall have authority to waive any condition of the application or policy, unless the waiver be in writing on the application and policy. Held, that the company was estopped to claim the policy was void. Appeal from circuit court, Worth county; Paris C. Stepp, Judge. Action by Lizzie Ross-Langford against the Mercantile Town Mutual Insurance Company. Judgment for plaintiff. Defendant appeals. Affirmed. Fyke Bros., Snider & Richardson, for appellant. Chas. M. Street, for respondent. 1. See Insurance, vol. 28, Cent. Dig. §§ 999, 1004. SMITH, P. J. insurance policy. record before us thing like this: This is an action on a fire The case disclosed by the may be stated to be some The plaintiff was the own er of a small frame dwelling house, containing five rooms, situate in Denver, a vil lage in this state, and, desiring to insure the same against loss by fire, applied to the defendant's agent to effect such insurance in defendant, a town mutual company organized under the statutes of this state (article 9, c. 119, Rev. St.), explaining to said agent the situation, character, etc., of the property. This latter, who was authorized to solicit insurance, receive applications, forward the same to said company, and collect the premiums, filled out the plaintiff's application, and while he was so doing she told him that the "building was really a residence," but that "one room in it was used for a millinery store," and then inquired of him what he was going to call it, and he replied, "A dwelling, of course," and thereupon he wrote "dwelling" in said application, which was forwarded to the defendant, and thereafter the policy was delivered to plaintiff and the premium paid by her. During the life of the policy the building covered by it was destroyed by fire. The defendant in its answer alleged that in the application for the policy it was stated and warranted that the building on which the insurance was requested was occupied as a dwelling, and that upon such warranty the policy was issued. The answer further alleged that the said building was not in fact a private dwelling. or so occupied, but was in part a business house, occupied and used as a millinery store, without the consent of the defendant being given therefor, as provided in the contract of insurance, by reason of which the policy was void, etc. The answer further alleged that in the notice of loss required by the said policy the plaintiff stated that said building so destroyed was occupied as a residence, and for no other purpose whatever, well knowing that in part it was occupied as a millinery store at the time of the fire, by reason of which false statement the plaintiff, under the terms of the policy in respect to the giving of notice, had forfeited her claim against defendant, etc. The plaintiff in her replication alleged that at the time the application was made she informed de fendant of all the facts with reference to the said building, and especially with reference to the portion of it that was used for millinery purposes, and that defendant, after being acquainted with the facts, itself wrote the said application, and thereby waived any right to claim, and was estopped to claim, said building was not used as a dwelling. etc. There was a trial, in which the plaintiff had judgment, and defendant has by appeal brought the case here for review. The court, at the request of the plaintiff, instructed the jury to the effect that if the "building was used for a dwelling at the time it was destroyed by fire, and the plaintiff made proofs of loss for the same, then your verdict must be for the plaintiff, notwithstanding you believe, from the evidence, that said building was not used exclusively for dwelling purposes at the time the application mentioned in evidence was made, but that one room was used for a millinery store, provided you further believe that, at the time that plaintiff made application for said insurance of defendant's agent, the plaintiff disclosed the fact to said agent that one room of said building was used for a millinery store, and that the defendant's agent thereupon wrote in said application that said building was occupied as a dwelling." The court refused to instruct, for defendant, that: (1). "The defendant is a town mutual fire insurance company, and it was not within the powers of its agent, who took the application for the policy on which this suit is brought,`to waive any of the condi- | tions of the application or policy, unless such waiver was in writing; and, even if you should find that the agent who took said application and issued said policy knew that said building was occupied as a millinery store or shop, still that would not constitute a waiver of the warranty in the application and policy that the building was occupied as a dwelling." (2) "That under the terms of the policy said building was insured as a private dwelling. Now, if you find, from the evidence, that at the time of the fire the same was not used as a private dwelling only, but was used in part as a millinery store or millinery shop, plaintiff is not en- titled to recover." (3) "That if you find, from the evidence, that plaintiff made an application in writing for the policy sued on, and that it is stated in said application that the building was occupied as a dwelling, then said statement constituted a warranty that said building should be so occupied as a dwelling only during the continuance of said policy; and if you find, from the evidence, that a portion of said building was at the time of the fire, or at any time subsequent to the issuing of the policy had been, occupied and used as a millinery store or shop, plaintiff is not entitled to recover." These instructions clearly outline the respective theories of the parties, upon which the case went to the jury. These theories are so diametrically opposed that, if one be right, it inevitably follows that the other is wrong. One of the principal questions arising in the case is whether or not the statement. in the application, that the building on which insurance was issued was a frame dwelling, without the mention of the fact that one room therein was occupied as a millinery shop, was a misdescription amounting to a misrepresentation of a material fact concerning the subject of the insurance, and, if so, should it have the effect to invalidate the policy? We cannot see that any other effect can be given it, under the express condi71 S.W.-46 tions of the policy pleaded, unless the defendant has in some way waived its right or is estopped to insist on said misrepresentation as ground of forfeiture. It is conceded that the defendant's soliciting agent, after he was apprised of the fact that one room of the plaintiff's building was used for a millinery shop, was accorded and exercised the option of selecting the term which should be written in the application as descriptive of the plaintiff's dwelling. He it was who, with all the facts and circumstances touching the occupancy and use made of the plaintiff's building, elected to term it in such application a "frame dwelling." If he was the agent of the defendant, and his act was that of the defendant, then the term used in the application in describing the building was that of the defendant's own choosing. The application thus written was accepted by the defendant, the policy written and delivered, and the premium thereon was paid. It is claimed that this constituted a waiver, or was in legal effect the same as striking the condition from the policy. The defendant, on the other hand, claims that since the application in plain and unambiguous terms gave notice to the plaintiff that it would be bound by no statement made to an agent not contained in the application, or, which is the same thing, that no statement made to an agent not in writing would be effective to bind defendant, therefore the statement made by the plaintiff to defendant's agent as to the occupancy of a part of her building was as if it had never been made. Under the law, as it has been repeatedly declared by the appellate courts of this state, there can be no doubt that a principal has the power to limit the authority of its agent, and cannot be held for acts of the latter in excess of his powers. In Thompson v. Insurance Co. (Mo. Sup.) 68 S. W. 889, it was said that the cases in this state "give full effect to the contractual power of the principal to limit the authority of his agent, in the original appointment or at any other time; but they also give like effect to all subsequent powers conferred by the principal upon his agent, either expressly or by implication, or by estoppel, notwithstanding such powers are in conflict with, in derogation of, or in enlargement of the powers originally conferred. And this rests upon the doctrine that in each instance the principal binds himself, not that the agent binds the principal beyond his powers to bind him. The act of the principal limiting the power of the agent is not irrevocable at the will of the principal. As the principal has the freedom to contract to impose the limitations upon the power and authority of the agent in the first place, so, also, the principal has the freedom to contract to remove, abolish, alter, diminish, or increase the limitations originally imposed upon the power of the agent, and this the principal may do in any manner that in law will be binding upon him; but in every case it is the act of the principal that the law simply enforces, and not the unauthorized act of an agent, done in excess of the authority conferred." And in the same case it was stated that the policy then under consideration contained a provision that no agent, except the secretary of the company, should have the authority to waive, alter, or modify the terms of the policy, nor to waive any forfeiture of the policy, nor to revive any forfeited policy, any contract, by parol or otherwise, or understanding with the agent to the contrary notwithstanding. This statement is followed with the observation that the defendant concedes that the rule has long obtained in this state that, notwithstanding such express limitations of the power in the agent by the terms of the policy, the insurance company, just like any individual who has so stipulated in the power appointing an agent, may afterwards, by another writing or by parol, modify or enlarge the power of the agent, or by its conduct and course of business with the assured be estopped to deny that the agent had not power to waive forfeitures, proofs of loss, and the like, notwithstanding the limitations of power contained in his appointment,-citing Nickell v. Insurance Co., 144 Mo. 420, 46 S. W. 435; Springfield Steam Laundry Co. v. Traders' Ins. Co. of Chicago, 151 Mo. 90, 52 S. W. 238, 74 Am. St. Rep. 521. And so it has been held that agents, in soliciting insurance when they undertake to prepare the application of the insured, or make any representations to the insured as to the character or effect of the statements of the application, will be regarded as doing so as the agents of the insurance company, and not of the insured. Insurance Co. v. Wilkinson, 13 Wall. 222, 20 L. Ed. 617. In Combs v. Insurance Co., 43 Mo. 148, 97 Am. Dec. 383, it was said that the authority of the agent of an insurance company to take applications for insurance carried with it the legal implication of authority to fill up the application and do all things needful in perfecting it, and that the acts of such agent were the acts of the company, and that from this it followed necessarily that the doctrine of estoppel in pais applied, and the company could not, after oss, disprove the statements that may well be said were made by it. It accepted the application, knowing the facts, and assumed the risk with this knowledge. Thomas v. Insurance Co., 20 Mo. App. 151. And in other cases in this state it has been in substance said that it matters not that the policy may stipulate that consent or waiver could only be effective by writing indorsed on the policy. In such circumstances failure of literal compliance with the stipulation would not be allowed to work a forfeiture; the company being estopped to make such claim. Hamilton v. Insurance Co., 94 Mo. 368, 7 S. W. 261; Anthony v. Insurance Co., 48 Mo. App. 65. And neither is there any impediment to waiving a stipulation as to waiver. Barnard v. Insurance Co., 38 Mo. App. 113; Anthony v. Insurance Co., supra. Williams v. Insurance Co., 73 Mo. App. 607, was an action on a fire insurance policy, where a forfeiture was claimed on the double ground that there was a misdescription in the application as to the kind of building and as to its value. The misdescription was conceded, and that the agent who took the application wrote the description of the building from his knowl edge of it. "In such circumstances," it was said by the judge who wrote the opinion, "the knowledge of the agent should be imputed to the company. With this knowledge, after having issued the policy and accepted the premium for insurance, it should not be heard to complain of the misdescription after loss. * * Nor does the fact that the application was read over to plaintiff alter the case. The fact still remains that the insurance company issued the policy and accepted the premium with knowledge that the house was misdescribed,"-citing cases. And in the recent case of Bush v. Insurance Co., 85 Mo. App. 155, it was said that "it is now held that, though the authority of the agent is limited and the knowledge of the limitation is brought home to the assured, yet the acts of the agent are considered those of the company itself, and they may bind the company, though exceeding the limitation,”— citing James v. Association, 148 Mo. 1, 49 S. W. 978; Springfield Steam Laundry Co. v. Traders' Ins. Co. of Chicago, 151 Mo. 90, 52 S. W. 238, 74 Am. St. Rep. 521. In view of the rulings in the cases to which we have referred, it is clear that the acts and declarations of the defendant's soliciting agent while writing the application were those of the defendant, and as its agent was apprised of the fact that the building was partly occupied as a millinery shop, and with knowledge it chose to designate and describe the building and its use as a "dwelling," to accept the application so written by its agent, to issue the policy, and to receive the premium thereon, it ought to be estopped to question the correctness of the description of the subject of the insurance or to claim a forfeiture under the provisions of the policy. But it is contended that the defendant could not waive the conditions either of the application or the policy, because of the limitation contained in section 8091, Rev. St., which is that no officer, agent, or other employé shall have authority to waive any conditions of the application or policy, unless such waiver be reduced to writing upon the application and policy or attached thereto. This section is found in article 11, c. 119, Rev. St., supra, and is therefore a part of the defendant's charter; and the question now is, what effect, if any, shall be given to it in its application to the present case? It is a new section, and so far as we know has not been noticed in any reported adjudi |