the testimony of the witnesses referred to. The counsel for plaintiff said he would consent, but counsel for defendant refused. Afterwards on the same day the judge sent for the counsel and informed them that he had concluded to allow the stenographer to read his notes of the evidence of the witnesses referred to to the jury, notwithstanding the objection, but the counsel for plaintiff said that he would not consent under those terms, and withdrew his consent; but the court, over the objection of counsel on both sides, had the jury brought in, and the stenographer read from his notes, as purporting to be the testimony of the gripman and the plaintiff, to which counsel on both sides duly excepted. The court offered to allow them to reargue the case, but they declined to do so, and the jury again retired.

"There were elaborate instructions given, which it will be unnecessary to copy here, because there is only one point in them of which there is any complaint, and that is, the court refused to instruct the jury that 'the servants of the defendant in charge of its car were bound to exercise a high degree of care in running and managing said car, so as to prevent the plaintiff from receiving injury whilst so riding upon the running board of said car.' The instructions given were to the effect that only ordinary care was demanded. There was a verdict for defendant railroad company, which was followed by motions of plaintiff to set aside the nonsuit as to Moll, and for a new trial as to the railroad company, which being overruled, plaintiff has appealed. Since the appeal was taken, defendant Moll has died, and the suit as to him abates.

"1. The court did not err in refusing to instruct the jury that the defendant owed the plaintiff the duty of observing for his welfare the same high degree of care that it owed in respect to a passenger. The relation of the plaintiff and defendant to each other in this case was not analogous to that of the parties in the cases to which we are referred by the learned counsel for plaintiffs under this head. Sherman v. Railroad Co., 72 Mo. 62; Whitehead v. Railroad Co., 99 Mo. 263, 11 S. W. 751, 6 L. R. A. 409; Buck v. Power Co., 108 Mo. 185, 18 S. W. 1090. In all of those cases the person injured was on the train or car with the consent of the servant in charge for the purpose of being carried. The first two of those were cases in which the plaintiffs were injured while riding on freight trains on steam railroads, which fact alone would distinguish them from the case of a boy jumping on a street car to sell newspapers, and jumping off again, while the car is moving. In the Sherman Case the plaintiff, a boy 13 years old, was stealing a ride on a freight train, and when he was discovered the brakeman told him that if he wanted to ride he must help brake, and gave him instructions, and the boy rendered help in that way, and at a station, at

the brakeman's request, assisted in coaling, and the conductor knew he was being carried on the train under those conditions. It was held that he was entitled to be regarded as a passenger, and to the same protection as if he had paid his fare. In the Whitehead Case the plaintiff was also a lad of 14, who was riding in the caboose of a freight train under, circumstances that indicated that he did not expect to pay any fare, but was riding free by the indulgence of the conductor, who knew he was there and apparently consented to his remaining, and it was held that he was a passenger. The Buck Case was one of a street railroad, and the plaintiff was a small boy, who was taking a ride with the driver, who was in sole charge of the car. The child rode with the driver on the front platform, and the accident occurred after the car stopped to let him off, and while the driver was assisting him to alight. No fare was paid or expected, but the child was there by permission or invitation of the driver, and it was held that he was a passenger. In Muehlhausen v. Railroad Co., 91 Mo. 332, 2 S. W. 315, the driver of a street car, who seems to have been alone in charge of it, invited or permitted a lot of school children to get on the car and ride with him on the front platform, no fare being asked or expected. One of the children fell off, and it was held that he was a passenger. These cases serve to illustrate the principle that pervades them, which is that when a carrier of passengers for hire knowingly receives in its car or other conveyance a person who comes in for the purpose of being transported, and the carrier enters upon the act of carrying him, the person while being so carried is a passenger, regardless of whether he has paid or is expected to pay his fare. This principle will include mail agents and newspaper vendors on steam railroads traveling from one end of a route to the other. But a newsboy jumping on and off a moving street car to sell his newspapers; not hailing to stop the car to receive him, nor signaling to stop to allow him to alight; not asking nor receiving permission, either express or tacit; not asking nor waiting for leave or license, but jumping on and off under circumstances that clearly indicate no purpose to pay fare, and no aim to be transported, but only to avail himself of the presence of persons on the car likely to buy his papers,-is in no sense a passenger, and the carrier is not under obligation to observe towards him the same degree of care that the law requires to be observed towards a person in the hands of the carrier to be transported. But the law does require of the carrier, under such circumstances, the exercise of ordinary care, and so the learned judge instructed the jury.

"2. Appellant assigns for error the action of the trial court in allowing the defendant to read in evidence the affidavit as to what the witness Flippen would have sworn to. The subject of continuances is treated minute

ly in our Code of Civil Procedure, aiming on the one hand not to compel a party to go to trial, when he has done all that can reasonably be expected of him to procure the attendance of his witnesses, and yet a material witness, whose testimony can be obtained, is absent, and, on the other hand, guarding against an abuse of the practice of continuances. And in that connection it is provided (section 2127, Rev. St. 1889) that, if 'the court shall find the affidavit sufficient, the cause shall be continued, unless the opposite party will admit that the witness, if present, would swear to the facts set out in said affidavit, in which event the cause shall not be continued, but the party moving therefor shall read as the evidence of such witness the facts so stated in such affidavit,' etc. The purpose of that statute is very plain. It is to meet the emergency, to avoid delay, to give the party who is ready an immediate trial, and yet give the other party the benefit of the testimony of his absent witness in the only form available at the time. Ordinarily a party is entitled to have his adversary produce his witnesses in court, to the end that they may be seen and cross-examined, and the waiving of that right is often no trivial matter. Besides, an affidavit drawn by a skillful lawyer is apt to be very much to the point, and is very forceful as evidence. The law will allow it only because the emergency demands it, and the opposite party agrees to it only to avoid delay. But in this instance, after the plaintiff made the admission which would authorize the affidavit to be read, the court of its own motion postponed the trial for a month and four days. The affidavit stated on its face that the witness resided in St. Louis, and could be produced at the next term, yet, when more than a month was afforded the defendant before the trial would be called, no effort was shown to have been made to produce him, but the court suffered the affidavit to be read. The emergency under which the law would have allowed the affidavit to be read had passed, and the consideration which induced the plaintiff to make the admission had failed. This was a very material witness, professing to have seen the accident, and whose evi dence professed to cover every point of the defense. The affidavit said of this witness that there was no other person whose evidence 'could have been procured at this term of said court by whom he or it [affiant or defendant] can prove or fully prove the same facts.' And the record shows that that was so. The admission of a party under such circumstances, to obtain a present trial, does not stand for all time, but ceases when the emergency ceases. If it should be held to be binding a month later, there is no reason why it should not be so held six months later. A month is as long notice as is ordinarily given of the setting of a cause for trial. Certainly it is long enough to obtain the service of process for witnesses residing

in the city, or to take their depositions if they are nonresidents, or, at all events, it is long enough to ascertain whether or not the evidence is attainable. The court erred in allowing the affidavit to be read over the plaintiff's objection.

"3. Appellant also assigns for error the action of the court in requiring the stenographer to read his notes of the evidence to the jury. The introduction of the official stenographer to take down the evidence in every case is of very recent date, and, so far as concerns his official duties, we must look to the statute creating the office, to learn what they are. The statute declares his duties to be 'to take full stenographic notes of the oral evidence offered in every case tried in said court or division, and of all other proceedings when directed by the judge, to be so reported, together with all objections to the admissibility of testimony and the rulings of the court thereon, and all exceptions taken to such rulings; to preserve all official notes taken in said court for future use, or reference, and to finally deposit the same with the records of said court according to the directions of the judge thereof; and to furnish any person a longhand transcript of all or any required part of said evidence or oral proceedings upon the payment to him of the fees hereinafter provided. When not reporting in open court, it shall also be his duty to take such notes as may be requested by the judge in chambers, and to furnish the latter a transcript thereof when required.' Section 8228, Rev. St. 1889: Id., § 10,106, Rev. St. 1899. Those are all the duties that the law prescribes for him, and whatever else he does is extraofficial. He is not made the umpire to decide disputed questions as to what the evidence was. Even in a bill of exceptions containing his transcript of his notes, the correctness of the evidence as set out is proven, not by his attestation, but by the certificate of the judge. It not infrequently occurs that a dispute arises between the parties as to the correctness of the stenographer's report of the evidence, and that dispute is not for him, but for the judge, to settle. Assuming that he is honest and capable, and writes down the evidence as he understands it, still he is as liable to have misunderstood it as a juror or an attorney or the judge. And, for that matter, it may be said that the judge is as liable as any one else to have misunderstood what the witness said; but the judge's understanding, when it comes to the bill of exceptions, must prevail, simply because it is necessary to leave the decision to some one, and the law has left it to him. But the law guards with somewhat jealous care the province of the jury, even from encroachment by the judge. The duty to hear and weigh the evidence and pronounce upon its preponderance, the duty to find the facts from the evidence as it falls from the lips of the witnesses at the trial, is the peculiar office of the jury. The juror

has a right, and it is his duty, to base his verdict on the evidence as he heard it; and he is not required and should not be compelled to yield his own memory and his own understanding of the evidence to that of another, even though that other professed to have taken notes. A juror's memory of the evidence at that stage of the case is as trustworthy as the stenographer's notes. The purpose of having the testimony taken down in shorthand is to preserve it for future reference after a period has elapsed during which it might not be so well remembered, and also for the convenience of the court, who is called on to review the case or sign a bill of exceptions not only after a considerable time may have elapsed, but also after he has tried, perhaps, a number of other cases, and his memory needs refreshing as to the details of the trial. But jurors, who have nothing else to do until the particular case is ended, whose minds are presumed to be upon it, and who go to the jury room with the testimony of the witnesses fresh in memory, do not need any such refreshing. They possess all that the law expects them to have upon which to base their verdict. If the memory of the juror is liable to be in error, or if, in the confusion of the trial, he may not have heard correctly what the witnesses said, he is in that respect no more liable to error or misunderstanding than any one else engaged in the trial; and at that stage of the case, at least, the law has made it his particular province to decide what the evidence was, just as at a later stage it is the judge's duty to settle a disputed question of that kind. But while the jury is in the act of exercising its particular and exclusive office its province should not be invaded. It has been held: That it is error to allow a juror to take notes of the evidence and carry them to the jury room. This is for the reason that there is a danger that the jury give undue weight to the notes, as against their own memories. Thomp. & M. Jur. 390; Cheek v. State, 35 Ind. 492. And that it is error to furnish the jury with the notes of the evidence taken by the judge at the trial. Neil v. Abel, 24 Wend. 185; Mitchell v. Carter, 14 Hun, 448. In Fleming v. Town of Shenandoah, 67 Iowa, 505, 25 N. W. 752, the jury sent a communication to the judge, asking to have the stenographer sent to the jury room to read the evidence to them, and the judge suffered it to be done. The supreme court of Iowa held that to be error. That was a more flagrant violation of the rule of good practice than the action assigned for error in the case at bar, but the two cases on that point differ only in degree. It was not suggested in the Iowa case, nor is it suggested here, that the stenographer read the evidence incorrectly. His opportunity for doing so in the Iowa case without challenge was greater than in the case at bar, but the principle involved in such a practice is the same. It is not a question of the degree of

prejudice in the particular case, which might be a difficult question to decide, but it is of the establishing a rule of practice under which a juror may be unduly influenced against his own judgment and contrary to his own memory of the evidence. If the notes are read in the presence of the court and counsel, and a dispute as to their correctness arises, who is to settle it? If the judge should say that the notes are correct, and a juror whose memory is clear to the contrary should say so, which is to prevail, the notes or the juror's memory, so far as his vote and his influence on the verdict is concerned? The law has not provided rules to govern the trial of such an injected collateral issue, but the theory is that the jurors must settle such questions for themselves, and the judge should wait until the stage of the case is reached at which he may interfere if he thinks wrong has been done. In this case the learned judge should have adhered to his original purpose to allow the stenographer's notes to be read only on condition that counsel on both sides consented thereto. When this proposition was made, the counsel for the plaintiff consented, but counsel for defendant refused to do so. The consent of the plaintiff's counsel was not that it might be done in spite of the defendant's refusal, but that it might be done with the consent of both. This was the judge's proposition. If the counsel for the plaintiff was of the opinion that it would be error to read the notes to the jury without the consent of both sides, he would be not likely to consent to a transaction which, if it should result in a verdict for him, the verdict would be of no avail, but, if for his adversary, it would be valid. At all events, when the judge intimated that he would require the notes to be read in spite of the failure of counsel to agree to it, the plaintiff's attorney withdrew his consent, and the notes were read with both sides objecting. However commendable the motive of the judge to prevent a mistrial, we cannot approve his decision on that point without establishing a precedent that would lead to a dangerous practice.

"4. It is insisted for defendant that the court should have given its instruction for a nonsuit on the ground of the plaintiff's contributory negligence. If the plaintiff had been a person of mature years. the court would have held him guilty of negligence, but as he was a child of ten years the question of his negligence was one for the jury.

"BRACE. P. J., concurs. ROBINSON and MARSHALL, JJ., concur in first, second, and third paragraphs, but dissent from the fourth paragraph, and for that reason the cause is transferred to court in banc."

A. R. Taylor, for appellant. Smith P. Galt and Boyle, Priest & Lehmann, for respondents.

PER CURIAM. In the foregoing opinion written by VALLIANT, J., in division No. 1,

BRACE, J., concurs. GANTT, C. J., and SHERWOOD, ROBINSON, and MARSHALL JJ., concur in first, second, and third paragraphs, but are of the opinion that there is no evidence to show negligence on the part of defendant corporation, and for that reason the judgment should be affirmed, and it is so ordered. BURGESS, J., absent.

REILLY v. CULLEN.

(Supreme Court of Missouri, Division No. 1. Nov. 12, 1900.)

ACTION-LEGAL OR EQUITABLE-PLEADINGTIME OF RAISING OBJECTIONS-PLEADING EVIDENTIARY FACTS MORTGAGES — FORECLOSURE REDEMPTION.

1. Where one conveyed property by deed absolute, with agreement that the grantee should pay certain claims against it, and sell it, or, on reimbursement, convey it to the grantor, or one whom he should designate, an action by the grantor against the grantee for the proceeds of the property, sold by the latter, is a suit in equity, as it involves decreeing the deed to be a mortgage.

2. Where no objection is made to a petition that, by reason of pleading evidentiary facts, it fails to state a cause of action until the trial is on, such objection comes too late, if, by construing the petition then as stating what the evidence pleaded tends to prove, it constitutes a cause of action.

3. The owner conveyed property by deed absolute, with an agreement that the deed was on condition that the grantee should pay the interest on a mortgage on the property to prevent foreclosure, and secure to him money due him by the grantor, and on reimbursement, together with reasonable compensation for his trouble, the grantee was to make a conveyance to the grantor or to whomever he might designate. Held, that the deed was designed as security merely, and the grantor was entitled to a foreclosure and an equity of redemption, notwithstanding that both parties construed a provision in the agreement that it should last 60 days to mean that the grantor should lose his interest entirely if reimbursement was not made before that time.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by W. V. M. Reilly against Michael J. Cullen. From an order setting aside a nonsuit and granting a new trial, defendant appeals. Affirmed.

Plaintiff sues to recover a balance alleged to be due him on account growing out of a real-estate transaction between him and defendant. The petition states that plaintiff being the owner of the land in question, and it being under a deed of trust for $6,000, liable at the date of the agreement in question to foreclosure on account of default in the payment of two interest notes for $180 each, and plaintiff being indebted to defendant's firm in the sum of $374, entered into a written agreement with him as follows: "St. Louis, February 18, 1897. This agreement between W. V. M. Reilly and M. J. Cullen witnesseth that Wm. V. M. Reilly has this day conveyed by deed to said Cullen his property on Evans avenue, on the following conditions: Mr. Cullen pays the interest on loan

of $6,000 on said property, to prevent sale under foreclosure, and to secure said Cullen money owed to him by said Reilly. Mr. Cullen agrees to allow said Reilly to sell said property, or to sell it himself; and on payment to him of what Reilly owes Cullen, and what money he pays out on said property, together with reasonable compensation for his trouble, said Cullen will make deed of said property to Reilly or to whom he may designate. This agreement to last for sixty days from this date. [Signed] W. V. M. Reilly. M. J. Cullen,"-upon which was indorsed the following: "It is agreed, under contract on reverse side, to leave to the judg ment of John J. Lane and D. J. Hayden the decision as to acceptance of any trade or sale of said property." Signed by the parties as above. The petition further states that the agreement above mentioned was afterwards extended, by consent of both parties, for an additional period of 60 days; that the property was worth $12,000; that defendant had paid the two semiannual interest notes above mentioned, which, with what he before owed, made plaintiff's total indebtedness to defendant $614, besides costs of advertising, the precise amount of which plaintiff did not know; that defendant had collected rent for the premises from February 13 to May 17, 1897: that defendant, without notice to plaintiff, and without the approval of Lane or Hayden, had on the date last named sold the property to one Diesing for $12,000, subject to the incumbrance of the $6,000 deed of trust above mentioned and the taxes for 1897, and had received the difference from Diesing, $6,000 in cash; by reason of which, "the petition alleges, plaintiff has been damaged to the extent of the difference between the price paid by Diesing and the reasonable market value of plaintiff's equity in said property, to wit. $6,000, and also the rent plaintiff would otherwise have derived from three of the houses on said lot from February 18, 1897, about $400." Judgment is asked for $6,400, less the amount of credits to which defendant may be entitled. The answer of defendant admits the written agreement; denies the alleged extension; also denies the alleged value of the property; avers that he sold it, after the expiration of the 60 days, for $7.600; and exhibits with his answer an account showing the disposition he has made of the proceeds. When the cause came on for trial, the plaintiff demanded a jury. Defendant objected, on the ground that it was a suit in equity, but the court ruled with the plaintiff that it was an action at law, and a jury was called. Upon the plaintiff's first offer of evidence, defendant objected on the ground that the petition did not state a cause of action at law, but the court overruled the objection, and the trial progressed. Plaintiff introduced the written contract in evidence, and then undertook to prove a parol agreement to extend the period mentioned in the contract 60 days longer. The court, upon ob

jection of defendant, excluded the evidence. In the discussion which followed the objection, the court ruled that the 60 days mentioned in the written agreement was an essential part of the contract, and that the alleged extension of the period could be proven only by writing signed by the parties. Thereupon the plaintiff took a nonsuit with leave, and filed a motion to set the same aside, alleging as ground for the same the exclusion of the parol evidence offered, the giving of an instruction to the effect that plaintiff was not entitled to recover, and refusal of the court to submit the case to the jury. The court sustained the motion, on the ground that "the court should have admitted parol evidence as to the contract in testimony." From this order the defendant appealed.

Stewart, Cunningham & Eliot, for appellant. H. A. Loevy, for respondent.

VALLIANT, J. (after stating the facts). The first question presented to the trial court was, is this an action at law or a suit in equity? The plaintiff's contention was that it was an action at law; the defendant's, that it was a suit in equity. The court ruled in favor of the plaintiff's contention. That was an erroneous conception of the case. The defendant's position on that question was correct; it is a suit in equity, and not cognizable in a court of law. It is a suit to call a trustee to account for the proceeds of the trust property disposed of by him.

Under certain conditions, judgment may be had against a trustee in an action at law for the proceeds of trust property disposed of by him. The decisions of this court referred to by the learned counsel for the plaintiff in support of that proposition amply sustain it. Dozier v. Jerman, 30 Mo. 216; Thornburg v. Jones, 36 Mo. 521; Railroad Co. v. Green, 68 Mo. 177; Sherwood v. Saxton, 63 Mo. 78. The plaintiff's theory of the case, pressed with effect in the trial court, was in the line of those decisions. But there is one feature that distinguishes this case from those, and puts it outside of a court of law. The defendant who is here sought to be adjudged a trustee is, by the face of deed in question, a purchaser of the land for value, without condition. Therefore before he can be adjudged a trustee the absolute deed must be decreed to be a mortgage. A court of law must take the deed for what it is on its face. It is only a court of equity that can transform an absolute deed into a mortgage.

The petition itself is not beyond criticism, under the rules of good pleading (although it follows what seems to have become a not unusual practice), and, if it had been demurred to on the statutory ground that it did not state facts constituting a cause of action, the demurrer should have been sustained. The statute requires the facts con

stituting the cause of action to be stated. By this is meant the ultimate facts as distinguished from the evidentiary or argumentative facts. The statute in this respect lays down for the code pleader in clearer terms the same rule that the common law on this subject prescribes; that is, that a plea must not be argumentative. To set out in the petition in hæc verba the contract on which the case is founded is to plead the evidence, not the facts. A pleader should deter ne in his own mind the legal effect of the written contract or other document that underlies his case, and plead it by its legal effect, as he understands it, and as he purposes to maintain it. If the instrument is merely copied into the petition, it leaves uncertain the issue intended to be tendered. depending on the construction that may be put upon it at the trial. Our Code pleading furnishes no authority for such uncertainty. But where, as in this case, no demurrer is filed, and no objection is made to the petition until the trial is on, it comes too late if, by construing the petition then as stating what the evidence pleaded tends to prove, it constitutes a cause of action. This petition is susceptible of such construction.

What was the effect of the written agreement of February 18, 1897, upon the deed by which the plaintiff conveyed the land to defendant? Of the deed itself we have no positive assurance, except the recital in the agreement that it was of the same date, and conveyed the land from plaintiff to defendant, which is not denied. From this we may infer that it was an absolute deed on its face. But a defeasance which may have the effect to convert an absolute deed into a mortgage may be contained in a separate document, and, as between the parties and privies in equity, the fact that a deed absolute on its face was given to secure a debt may be established even by parol evidence, and thus convert the deed, in effect, into a mortgage. A great text writer on this subject expresses it thus: "In equity the character of the conveyance is determined by the clear and certain intention of the parties; and any agreement in the deed, or in a separate instrument, showing that the parties intended that the conveyance should operate as a security for the repayment of money, will make it such, and give to the mortgagor the right of redemption. A deed absolute on the face of it, and though registered as a deed, would be valid and effectual as a mortgage, as between the parties, if it was intended by them to be merely a security for a debt, and this would be the case though the defeasance was by an agreement resting in parol." 4 Kent, Comm. (14th Ed.) *142. Another great writer says: "Every conveyance of land which is in fact, whatever it may be in form, a security for a debt, contemporaneous or antecedent, is in equity a mortgage." 2 Story, Eq. Jur. (13th Ed.) § 1018. And this equitable doctrine we have