(293 S.W.) Said deed of trust also contained an acceler-, tance of the amount of interest due, and also ation clause in the following terms: ant, appellant on December 31, 1922, did list the loan as in default in its annual statement and so carried it in its records thereafter. However, no actual proceedings for foreclosure under the deed of trust were instituted by appellant, awaiting the final determination of the prior litigation; nor did defendant, or any one for her, at any time thereafter offer to pay all or any part of the outstanding indebtedness. that he send tax receipts for the years 1920 "But should default be made in the payment and 1921. On December 20, 1922, appellant of any evidence of indebtedness hereinbefore again wrote him to the same effect, and adreferred to (whether principal note or interest vised that no delinquent principal and intercoupon) or any part thereof as the same be- est notes would be carried in its annual statecomes due and payable, or if there shall be a ment of December 31st of that year. A simibreach of any covenant or warranty herein, ex- lar letter was again written to him on Depress or implied, or if the said grantor fails or cember 26th, appellant not having been at neglects in any respect to fully keep or perform the time advised of his death. Having reany one or more of the covenants and agree-ceived no response from Wooten or defendments herein contained, or if there shall be any default in the immediate repayment to trustee or International Life, their successor, or assigns, of any amount paid by it or them, if any, for any and all taxes, general or special, redemption, insurance, or to discharge liens, or to protect title or possession, with interest as hereinbefore specified, then International Life, its successor or assigns, may thereupon, at its or their option, consider and declare without notice as immediately due and payable (and enforce the collection of) not only the principal note or notes and interest coupon or coupons, if any, previously due according to its or their terms, but also all principal indebtedness evidenced by any and every other principal note hereinbefore referred to, with interest thereon at the rate therein specified from its last preceding interest coupon maturity by the tenor and effect thereof, and this deed of trust date until paid, without notice, though not then due may thereupon be foreclosed by court proceeding and payment of all indebtedness enforced." On December 29, 1919, a policy of life insurance in the sum of $6,000 was issued by appellant to James A. Wooten, naming defendant as the beneficiary therein. This policy was taken out by Wooten at the suggestion of plaintiff, was a transaction entirely separate from the negotiations for the loan, and was not intended as additional collateral therefor. Said policy contained the following clause: "Any indebtedness to the company will be deducted in any settlement of this policy, and, in the event of the death of the insured, any balance of the premium for the insurance year remaining unpaid will also be deducted." On December 23, 1922, James A. Wooten died, although the proof of his death was not filed with appellant until March 23, 1923. It appears that the first two interest notes had been promptly paid by him as they fell due, but that the third note, due on December 1, 1922, had not been paid. Furthermore, the taxes on the land for the years 1920 and 1921 were in arrears, so that there was a delinquency amounting to $1,414.42 in the way of interest and other charges due at the time of Wooten's death. On January 3, 1923, when the summons to garnishee was served upon appellant, there was due appellant from defendant the sum of $7,575.41 (if we assume that the principal of the loan was due), which amount did not include the arrears in taxes in a sum approximating $1,000. On December 5, 1922, appellant wrote Wooten asking that he make prompt remit Appellant argues that the court erred in overruling its demurrer offered at the close of the entire case. It contends, first that, prior to the service of the writ of garnishment upon it, the entire indebtedness of defendant and her deceased husband had beunder the terms of the policy of insurance, come due and payable; and, second, that, it had the right to apply the proceeds of said policy to the payment of such indebtedness. The issues before us are thus clearly drawn, and the disposition of the case depends upon the decision as to the correctness of both of the above contentions. [1] Addressing ourselves to the first of such issues, we find that both in the principal note and in the deed of trust were acceleration clauses, which provided, in effect, that, if default was made in the payment of interest, or in case of the failure to perform any of the covenants contained in the deed of trust (such, for example, as the covenant to pay taxes), the principal sum, together with the interest due and accrued thereon, should at the option of the legal holder of the note become due and payable without notice. It has been held that parties are free to contract in this regard as they may deem fit, and that their contracts thus made are binding. Meier v. Meier, 105 Mo. 411, 429, 16 S. W. 223, and cases cited therein; 41 C. J. 413. [2] It is undisputed that the third interest note, due December 1, 1922, was not paid and that the taxes for the years 1920 and 1921 were in arrears. Such default, however, did not ipso facto mature the entire debt, for the reason that the contract of the parties made it optional with appellant whether or not the entire indebtedness of defendant and her husband should be declared to be at once due and payable. The question next arising therefore is, when, if ever, did appellant exercise its option under such accelerative provision in the contract? [3] Although the parties had seen fit to contract that no notice was required from appellant to defendant of its act in availing itself of such provision, yet some affirmative action evidencing such election on its part was required of appellant. 19 R. C. L. 497; 41 C. J. 851. Manifestly the several letters from appellant to defendant's deceased husband were not sufficient, inasmuch as they could be held to constitute no more than a declaration of appellant's intention, in the event the interest was not paid and the tax receipts supplied, to declare the whole debt due and payable at some future time. But on December 31, 1922, appellant did list the entire indebtedness on its records as at once due and payable, and we cannot escape the conclusion that, in so doing, it took such affirmative action as to constitute a valid exercise of its option; and, by reason of the terms of the contract, the fact that defendant may have been given no notice of such election is immaterial. 8 C. J. 417. [4] Furthermore, inasmuch as the acceleration clause appeared in the note, which was the basic part of the contract, after its option to mature the entire indebtedness had been exercised by appellant, the obligation of defendant was fixed and it was no longer within her power to pay the amount in arrears and thus restore the note to good standing. Brown v. Kennedy, 309 Mo. 335, 274 S. W. 357, 41 A. L. R. 729. [5] Thus on January 3, 1923, when the writ of garnishment was served upon it, there was due and owing to appellant from defendant a sum considerably in excess of the amount of the proceeds of the policy of life insurance. Of course, plaintiff, as a creditor of defendant, could assert no greater rights against appellant, as garnishee, than defendant herself could have claimed against it. Holker v. Hennessey, 143 Mo. 80, 44 S. W. 794, 65 Am. St. Rep. 642; Hoffman & Coppersmith v. National Bank, 211 Mo. App. 643, 249 S. W. 168; Roberts v. Hodges (Mo. App.) 222 S. W. 859; Shuck v. Ford (Mo. App.) 206 S. W. 427; Stewart Land Co. v. Romig (Mo. App.) 218 S. W. 892; Locke v. Woodman (Mo. App.) 225 S. W. 352, 28 C. J. 241. That is, if defendant could not have compelled appellant to pay over to her the proceeds of such policy, plaintiff had no right to hold such policy fund by his garnishment, [6] In this connection appellant contends that, under and by virtue of the provision in the policy of life insurance to the effect that any indebtedness to the company would be de ducted in any settlement of the policy, it had the right to set off the debt of defendant to it against that of it to her. Whether it actually had such right under the facts of the case at bar would ordinarily be a question of much concern to us, inasmuch as the indebtedness of defendant to it did not grow out of and was wholly extraneous to the policy. The few authorities that a rather comprehensive search has brought to our attention are almost evenly divided on this question. Plaintiff, however, in the lower court tried the case upon the theory, as shown by his requested declaration of law, that appellant was entitled to deduct from the proceeds of the policy "the amount accrued as past due upon the interest notes and obligations of said deed of trust." Certainly, if part of the indebtedness could be thus deducted, appellant would be clearly entitled to set off the entire indebtedness of defendant to it against the sum due defendant under the policy. It is well settled that a case cannot be tried upon one theory in the trial court and decided on a totally different theory in thé appellate court, and that the theory adopted by the parties in the trial of the case is the theory upon which the case must be heard, considered, and decided in the appellate court. In re Guardianship of Angela McMenamy, 307 Mo. 98, 270 S. W. 662; Feil v. Wells (Mo. Sup.) 282 S. W. 25; Simpson v. Wells, 292 Mo. 301, 237 S. W. 520; Hayes v. Kansas City, 294 Mo. 655, 242 S. W. 411; Lorenz v. Bull Dog Automobile Ins. Ass'n (Mo. App.) 277 S. W. 596; Plannett v. McFall (Mo. App.) 284 S. W. 850; State ex rel. v. Cameron, 216 Mo. App. 683, 273 S. W. 746. It is apparent, therefore, that appellant, through the exercise of its right of set-off, did not have in its possession any funds owing to defendant at the time the writ of garnishment was served upon it, from which it follows that the demurrer to all the evidence should have been sustained. For such reason the commissioner recommends that the judg ment of the circuit court be reversed. PER CURIAM. The foregoing opinion of BENNICK, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly reversed. DAUES, P. J., and BECKER and NIPPER, JJ., concur. (293 S.W.) SHIELDS v. AMERICAN CAR & FOUNDRY St. Louis Court of Appeals. Missouri. Feb. 1. Trial 131 (2)-In personal Injury suit, comment on defendant's failure to use examining physician as witness held not to require jury's discharge in absence of timely request. Comment by plaintiff's counsel on defendant's failure to use as witness in personal injury suit a physician, who examined plaintiff at defendant's request, would not require discharge of jury where at the time defendant merely asked for rebuke to counsel, which the court granted, and did not move for discharge until close of arguments and retirement of jury. 2. Trial 131 (2)-Request to discharge jury for counsel's prejudicial argument should be made at time. Request to discharge jury for alleged prejudicial remark of counsel in argument on defendant's failure to examine witness should be made at the time of the remark. 3. Trial 133(6)-Court's admonition to counsel to confine himself to evidence held to sus tain motion for rebuke for prejudicial argu ment. Defendant's motion for new trial, among others, assigns the following ground therefor: "(15) The court erred in failing to rebuke counsel for plaintiff and to discharge the jury upon motion and request of defendant, when, during the argument of the cause, the following occurred: "Mr. Berthold: I ask you, gentlemen, to remember, too, that Mr. Linton, when I put him on the stand, the time before Mr. Sheppard made his objection, said that Dr. Schlueter was in this court room this morning; that he made an examination of him "Mr. Sheppard: We object to the statement that Mr. Linton admitted this morning that Dr. Schlueter was in the court room as being highly prejudicial to the defendant's rights. The plaintiff had the same right and opportunity to subpoena Dr. Schlueter as the defendant did. The courts have held that, under the law, where plaintiff is examined under the circumstances shown in this case, there is no more obligation on the part of the defendant to place the physician on the stand than there is on the part buked for making that statement. of the plaintiff, and we ask that counsel be re 66 "The Court: Confine yourself to the evidence. "Mr. Berthold: We except to the failure of the court to rebuke counsel.' "After the close of arguments, the following occurred: ""Mr. Linton: I move that the jury be discharged for prejudicial remarks made during the argument of counsel. ""The Court: Overruled. "Mr. Linton: We except to the ruling of the court for failure to discharge the jury for prejudicial remarks of counsel for plaintiff during the argument."" The facts which are pertinent to the question before us, as we glean them from the record, are that the defendant, with the consent of counsel for plaintiff, had Dr. Robert Appeal from St. Louis Circuit Court; E. Schlueter make an examination of plainGranville Hogan, Judge. "Not to be officially published." Action by George Shields against the American Car & Foundry Company. Judgment for plaintiff, and defendant appeals. Affirmed. Watts & Gentry, Arnot L. Sheppard, and James H. Linton, all of St. Louis (G. A. Orth, of New York City, of counsel), for appellant. Fred Berthold, Harry J. Paul, Mark D. Eagleton, and Harry S. Rooks, all of St. Louis, for respondent. BECKER, J. Plaintiff, in an action for personal injuries alleged to have been sustained while in the employ of defendant, obtained a judgment against defendant in the sum of $2,000. Defendant appeals. The only assignment of error is that the trial court erred in refusing to discharge the jury because of prejudicial remarks by plaintiff's counsel in his argument to the jury. tiff, and that Dr. Schlueter had been subpœnæd as a witness for defendant. It is conceded that Dr. Schlueter had not been appointed by the court to make the examination of plaintiff upon motion of the defendant. During the course of the trial, plaintiff, in rebuttal, placed Joseph H. Linton, one of the attorneys for the defendant, upon the stand. He was asked the question: and with our consent, you had Dr. Robert E. "Mr. Linton, I believe that at your request, Schlueter make an examination of this plaintiff on December 5, 1925?" To which witness answered: "I don't believe I was handling it, but I think that was done; yes, sir." Then he was asked: "I will ask you if Dr. Robert E. Schlueter was not in the court room this morning at 11 o'clock?" For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes To which objection ground that the question was utterly immaterial. was made on the a court makes such an appointment he does so because he determines that, in his discretion, the case calls for the opinion of disinDuring the colloquy that ensued between terested and unbiased physicians, not friends counsel and the court, the court asked wheth- of either parties, whose testimony is likely er Dr. Schlueter was under subpoena. Coun- to be biased, and that physicians so appointsel for plaintiff replied that he had not sub-ed are the officers of the court. Atkinson v. pœnæd him. Thereupon the court asked, United Rys. Co., supra; Fullerton v. For"Is he under subpoena from either side?" to which one of counsel for defendant answered, "I think so." The result of the colloquy was that the witness was excused without answering the question, to which objection was leveled. dyce, 121 Mo. loc. cit. 10, 25 S. W. 587, 42 Am. St. Rep. 516; Owens v. Railroad, 95 Mo. loc. cit. 178, 8 S. W. 350, 6 Am. St. Rep. 39; Shamp v. Lambert, 142 Mo. App. loc. cit. 576, 121 S. W. 770. In the Atkinson Case, then, our Supreme [1, 2] With the record facts before us, as Court held that argument directing attention we have set them out above, we have care- to the omission on the part of defendant to fully considered the criticized part of the call a physician who had examined the plainargument of plaintiff's counsel, and, in light tiff, under an appointment by the court, was of the authorities, have come to the conclu- prejudicial error. Here, however, it is adsion that we cannot rule that the court erred mitted that Dr. Schlueter was not appointed in refusing to discharge the jury therefor. by the court to examine plaintiff, and the We note, in the first place, that when counsel record discloses that Dr. Schlueter was perfor the defendant objected to the statement | mitted, by consent of plaintiff, to examine of plaintiff's attorney, during his argument plaintiff at the request of defendant, and to the jury, he merely asked, "that counsel be rebuked for making this statement," and, upon the court admonishing counsel for plaintiff to confine himself to the evidence, counsel for defendant then merely excepted, | "to the failure of the court to rebuke counsel." No request was made at that time to have the jury discharged. Only after the conclusion of all of the arguments, and after the jury had retired to consider their verdict, did counsel move that the jury be discharged for prejudicial remarks made during the argument of counsel. In our view, the request to discharge the jury was not timely. It should have been made at the time the request was made to rebuke plaintiff's counsel for the remarks that were considered prejudicial to defendant's rights. therefore, so far as this record is concerned, Dr. Schlueter must be viewed as defendant's witness, and, consequently, the ruling in the Atkinson Case, supra, is not in point. The facts in this case more nearly approach those in the case of Wilson v. Seed Co. (Mo. App.) 243 S. W. 390, an action for personal injuries, in which it was held not to be error for counsel for plaintiff to comment, in closing argument, upon defendant's failure to produce a doctor whom the defendant had called to treat plaintiff. [3] In light of the record before us, and the action of the court upon the request of counsel for defendant that plaintiff's counsel be rebuked for his statement, which action of the court we interpret as intending to sustain said motion and as a very mild rebuke to plaintiff's counsel (State v. Kelley [Mo. Sup.] 284 S. W. 801, loc. cit. 803), and the fact that the motion to discharge the jury was not presented at the time, but only after the arguments to the jury had been completed and the jury had retired to consider its verdict, we are constrained to rule that the point here sought to be made by defendant is with Counsel for defendant, to support his contention here, relies mainly upon the case of Atkinson v. United Rys. Co., 286 Mo. 634, 228 S. W. 483. That case is readily distinguishable on fact from the case in hand. There the Supreme Court held it error for counsel to comment upon the failure of the defendant to use as a witness a physician who had been appointed by the court to make an ex-out merit. amination of the plaintiff. In the course of [4] We note that plaintiff has filed with the opinion, it is ruled that the law invests the trial court with authority to appoint a physician to make physical examination of the plaintiff in a physical injury suit; that the defendant, however, cannot demand an appointment of a physician for that purpose as a matter of right, but that it is within the discretion of the trial court, and that when his reply brief a motion to award damages as for a vexatious appeal. The same is overruled. In light of what we have ruled above, the judgment should be affirmed. It is so ordered. DAUES, P. J., and NIPPER, J., concur. (293 S.W.) A. P. NOLAN GRADING & CONSTRUCTION the city of St. Louis to perform the work of constructing and completing the athletic field of Cleveland high school according to specifications adopted by the board, consisting of grading, fencing, building of tennis courts, 1. Work and labor 27 (3)—In grading sub-running tracks, retaining walls, stairways, contractor's action on quantum meruit, evidence of cost of work held admissible on question of value. In action on quantum meruit by subcontractor against principal contractor for balance due under an oral grading contract, evidence of the cost of the work held admissible as aiding in determining its reasonable value. 2. Work and labor 27 (3)-Evidence of original bids held inadmissible on question of value under changed conditions in grading subcontractor's action for work. In action by subcontractor on quantum meruit under oral grading contract, made after discovery during work that an original written agreement was based upon error in estimating rock to be encountered and yardage to be removed, evidence of original bids, based on anticipated conditions, held inadmissible on question of value of work. 3. Trial 29 (2)-In grading subcontractor's suit for value of work, court's statement of uncontreverted fact held not error. In suit on quantum meruit on oral grading contract, court's remarks, that a different condition was found than was thought to exist when contracts were let, held not prejudicial to defendant, under evidence showing statement to be an uncontroverted fact. 4. Appeal and error 882(12)-Using "reasonable value" for "market value," in instruction in suit on quantum meruit, held not prejudicial to defendant who used same term. In grading subcontractor's suit on quantum meruit, use in instruction of the term "reasonable value" instead of "market value" held not prejudicial to defendants, who made no request to have the term defined and frequently used it in their instructions. and several minor matters, for the sum of $40,000. The specifications contained the following clause: "Some loose rock will be encountered in doing the grading. The contractor shall figure on handling this class of grading, but no solid rock excavation will be required." The specifications required excavation amounting to approximately 12,000 cubic yards. The dimensions of the field were 100 by 300 yards. On October 15, 1923, defendants subcontracted the work of excavating the field to plaintiff according to the following proposition, made by the plaintiff to defendants and accepted by defendants: "We, the A. P. Nolan Grading & Construction Company, propose to do the excavating or grading according to your contract on the property of the Cleveland high school, in St. Louis, for the sum of 75 cents per cubic yard. "We will furnish all equipment and tools necessary for this work, and leave it in a neat, uniform shape, within 21⁄2 inches of specified grade. This price does not include solid rock, loose ledge rock, or rock boulders larger than the capacity of a one-half yard steam shovel dipper. "We will expect you to make weekly paytracted on account of this work, but no payment ments sufficient to cover pay rolls and bills conin excess of the work done will be expected by us." On November 1, 1923, pursuant to this contract, the plaintiff entered upon the work of excavating the field, bringing to the work a steam shovel, 10 to 12 wagons and teams, and other equipment, with workmen necessary to properly carry on the work. After Appeal from St. Louis Circuit Court; H. the workmen had been at work about a day A. Rosskopf, Judge. "Not to be officially published." Action by the A. P. Nolan Grading & Construction Company against C. F. Schilling and another, doing business under the firm name of C. F. Schilling & Co., defendants. Judgment for plaintiff, and defendants appeal. Affirmed. T. J. Hoolan, of St. Louis, for appellants. Leahy, Saunders & Walther, of St. Louis, for respondent. and a half on the field and had excavated about 500 cubic yards of earth, they encountered solid rock, ledge rock, and boulders larger than the capacity of a one-half yard steam shovel dipper, above the elevation established by the board, as shown by the specifications, which rendered the work of excavating the earth much more difficult and expensive than was contemplated when the contracts were entered into. The solid rock was of irregular formation and contained dips and pockets. There were layers of earth between the layers of ledge rock, and the large SUTTON, C. This is an action on quan- boulders were interspersed in the earth to be tum meruit for work performed by plaintiff excavated. So that it was not practicable in excavating and grading the athletic field to excavate the earth without removing a of Cleveland high school, in the city of St. large amount of the ledge rock and large Louis, under contract with the defendants. boulders. As the work progressed, the conOn October 9, 1923, defendants entered into ditions encountered proved to be such that a contract with the board of education of it was found necessary to raise the elevation For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |