foot of the horse causing a runaway, an in-, unhitched the team; later in the day, when struction permitting recovery upon any showing they started to return, he hitched up the of negligence was erroneous, since recovery cannot be had upon general negligence, where the team and noticed that the neckyoke ring was petition alleges specific acts of negligence. too large for the end of the tongue, and that 5. TRIAL Om 219 — INSTRUCTIONS - DEFINI- the strap was hanging down from nine to TIONS.

twelve inches. Defendant stated that he did Where it is desired to use the words “prox- not know what the strap was for.

On the imate” or “proximate cause” in an instruction not know what the strap was for.

" in an action for injuries to property bailed, these return journey, and while going down a hill, terms should be defined.

the tongue slipped through the ring in the 6. EVIDENCE C506 — EXPERT TESTIMONY

neckyoke, and, there being no brake, the QUESTIONS OF FACT.

In an action for injuries to a horse loaned wagon ran upon the horses, whereupon they defendant for his sole benefit, caused by the ran away, throwing plaintiff and his wife wagon running upon it, whether the neckyoke and the young lady out of the wagon. The and tongue constituted a safe appliance, and evidence shows that as a result of the acciwhether the absence of a sufficient brake made dent one of the horses was so crippled and the wagon dangerous, was for the jury, and not for expert testimony.

maimed that it was worthless. 7. ANIMALS Om 27-DAMAGES Om 62(3) - RE- The case was tried upon the theory that DUCTION OF Loss.

plaintiff was entitled to recover if negligence In an action for injuries to a horse loaned defendant for his sole benefit, it was proper to was shown upon the part of the defendant allow plaintiff his expenses on account of pas- and there was none upon the part of the turing the horse, together with medicine and plaintiff that directly contributed to the loss. veterinary services; it being his duty to mini- Defendant urges as a matter of law that mize damages as much as possible.

plaintiff was guilty of such negligence as Appeal from Circuit Court, Adair County; precluded his recovery in this case.

This C. D. Stewart, Judge.

contention is based upon the claim that “Not to be officially published.”

plaintiff or his agent furnished to defendant Action by Amos Mitchell against E. M. a defective wagon, wagon tongue, and neckViolette. Judgment for plaintiff, and de- yoke to go upon a road known to plaintiff to fendant appeals. Reversed and remanded. have been hilly and did not tell defendant

P. J. Rieger, of Kirksville, and Hall & of such defects and that they were not Hall, of Trenton, for appellant. Fugate & known to defendant. Son, of Novinger, for respondent.

Plaintiff's wife, who was his agent, tes

tified that defendant not only assisted in BLAND, J. This is an action for damages hitching up the horses but saw the team to a horse gratuitously loaned by plaintiff to hitched up and that he understood its hitchdefendant for the latter's sole benefit. Plain- ing; that she told the defendant that everytiff recovered a verdict and judgment in the thing was all right and perfectly secure, but sum of $250, and defendant has appealed. that if defendant did not understand any

Defendant's first point is that his demur- thing about hitching up the team, “I will rer to the evidence should have been sus- show you how to do it, and he seemed to tained. Taken in its most favorable light understand everything all right,” and “I

“ to plaintiff, the evidence shows that defend told him if you don't understand the team ant borrowed from plaintiff a team and wag. don't unhitch them but hitch them to a on for the purpose of taking defendant's tree.” Defendant claims that he was hitchfamily and a young lady friend to the coun- ing up the tugs when plaintiff's wife was try to gather nuts. The wagon was an ordi- fixing the neckyoke and did not see how the nary one-horse wagon. Plaintiff had taken latter was arranged, but in view of plaina regular large two-horse wagon tongue and tiff's testimony the jury was not required to dressed it down to make it light enough for take that of the defendant. It is admitted the one-horse wagon. The tongue had a cap that defendant was there and saw the team or ferrule on its end, with a flange to pre- hitched up, and as plaintiff's wife stated vent the ring in the neckyoke from slipping that defendant saw how it was done, the back from the end of the tongue. The neck-inference is strong that defendant saw how yoke was that of a regular two-horse wagon, the neckyoke was attached to the tongue. It and the ring in the yoke was too large for is apparent from the evidence that the dethe ferrule and flange. To prevent the ring fendant was familiar with the hitching and from slipping back over the flange a strap was unhitching of the horses. He not only asprovided, which was wrapped three times sisted plaintiff's wife in hitching the horses, around the ring and flange for the purpose but also unbitched them at the end of the of holding the ring and the tongue together journey, after he was cautioned by plaintiff's so as to prevent the flange from running wife that if he did not know how to unhitch forward through the ring of the neckyoke. to leave the horses hitched to the wagon. Defendant received the wagon and team [1-3] Defendant testified that when he from plaintiff's wife, who assisted him in started to return he saw the ring on the hitching up.

When defendant reached the neckyoke was too large for the tongue, and place where the nuts were to be gathered, he that he saw the strap hanging down from

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tiff.”

nine to twelve inches. Defendant, being a discharging this duty any expenses incurred bailee of the wagon and horses for his sole in attempting to cure or restore the horse benefit was bound to take great care and use | were properly allowable to plaintiff. Gilwee extraordinary diligence, and he was respon- v. Pabst, 195 Mo. App. loc. cit. 490, 193 S. W. sible for a slight neglect in relation to the 886, cases cited therein. On the next trial subject-matter of the bailment. 6 Corpus the court should not submit to the jury any Juris, 1127; Lawson on Bailments, $ 38. loss of which there is no evidence. And as defendant was familiar with such We have examined the other points raised matters, the jury were justified in finding by defendant, and find no merit in them. that he was guilty of negligence in not using The judgment is reversed, and the cause the strap to safely tie the neckyoke and remanded. All concur. tongue, even if it were admitted that he did not see how the neckyoke and tongue were adjusted by plaintiff's wife at the beginning. We also think that the question as BAUERDORF v. HENRY VOSE WALL PA

PER CO. (No. 12583.) to whether plaintiff or his wife was guilty of negligence that contributed directly to the

(Kansas City Court of Appeals. Missouri. injury under the circumstances was a ques

April 1, 1918.) tion properly submitted to the jury.

1. SET-OFF AND COUNTERCLAIM 49(1)-AS[4] The petition alleges that the defendant SIGNEE-STATUTES. so carelessly and negligently handled and against plaintiff assignee, a right of action

Defendant cannot assert, as a counterclaim managed the wagon and team that the wag. against the assignor, since Rev. St. 1909, $ 1807, on ran upon the left hind leg and foot of provides that “a counterclaim must be one exist one of the horses causing the team to run ing in favor of defendant and against a plainaway and resulting in the injury. Plaintiff's 2. SET-OFF AND COUNTERCLAIM 35(1)—DEinstruction No. 1 permitted plaintiff to re- MANDS NOT LIQUIDATED—STATUTES. cover upon any showing of negligence on Buyer of wall paper, only a small part of the part of the defendant. It is axiomatic which was delivered, cannot, when sued by asthat a petition may not allege specific acts claim as a set-off damages for seller's breach;

signee of seller for price of paper delivered, of negligence and recovery had upon general such claim being unliquidated within Rev. St. negligence. Detrich v. Met., 143 Mo. App. 1909, § 1867. 176, 127 S. W. 603; Black v. Met., 217 Mo. 3. SET-OFF AND COUNTERCLAIM Om8(1) - EQ672, 117 S. W. 1142; Arata v. Met., 167 Mo.

UITABLE SET-OFF-UNLIQUIDATED CLAIM.

Where seller agrees to fill certain orders of App. 90, 150 S. W. 1122. The negligence of wall paper, but delivers only part of one order, which defendant was guilty, if any, was in the buyer, in action for price of paper delivered, failing to properly hitch up the team on the has no equitable set-off for his claim of damages

against seller for breach of contract to fill all return journey.

orders; such claim being unliquidated. [5] The giving of plaintiff's instruction No. 5 was error. This instruction is couched in Appeal from Circuit

Circuit Court, Buchanan language that is very difficult, if not impos- County; Charles H. Mayer, Judge. sible, to understand, and tends to mislead

“Not to be officially published.” the jury. If plaintiff on another trial de

Action by Charles R. Bauerdorf, trustee, sires to make use of the words “proximate” against the Henry Vose Wall Paper Company, or “proximate cause,” these terms should be Judgment for plaintiff, and defendant apdefined to the jury. Turnbow v. Dunham, peals. Affirmed.

. 197 S. W. 103; Montgomery v. Railroad, 181 Groves & Watkins, of St. Joseph, for apMo. 508, 79 S. W. 938.

pellant. Spencer & Landis, of St. Joseph, [6] Whether the neckyoke and tongue, ar- for respondent. ranged as plaintiff had this one, was a safe appliance was a question for the jury, and BLAND, J. This is a suit upon a connot one for expert testimony; also wheth-tract wherein defendant purchased wall paer the absence of a sufficient brake on the per from Frederick Beck & Co. Frederick wagon would render it dangerous. Presuma- Beck & Co. for value assigned this contract bly, the jury was composed largely of farm-to plaintiff. Plaintiff prevailed in the lower ers and of those who were familiar with court, and defendant has appealed. wagons such as the one involved in this The facts show that the defendant was a case, and they were qualified to pass upon jobber of wall paper, located in the city of these questions without the aid of expert St. Joseph, Mo. Frederick Beck & Co. was testimony.

a manufacturer or printer of wall paper, lo[7] We do not think the court erred in cated at Hoboken, N. J. Beginning with Nosubmitting an instruction to the jury allow-vember 15, 1916, defendant sent in to Fr ing plaintiff his expenses on account of pas- erick Beck & Co. several written orders for turage of the maimed horse together with wall paper, which were accepted by the latmedicine and veterinary services. It was ter. This suit is for the contract price of a the duty of plaintiff to minimize as much as part of the first shipment. Defendant adpossible the damages to defendant, and in 1 mitted that the amount claimed was correct,

but claimed damages by reason of alleged , age Co. v. Campbell, 164 Mo. App. 8, 147 S. breaches of the contract.

W. 545; Estate Co. v. Arms Co., 110 Mo. App. The evidence shows that each manufactur- 406, 86 S. W. 489; Volker v. Stone, 181 Mo. er or printer of wall paper had individual or App. 311, 168 S. W. 902.

App. 311, 168 S. W. 902. Defendant is not distinct prints, and that a custom existed entitled to maintain its defense as a set-off

a for wall paper jobbers to make up sample under our statutes, section 1867, R. S. 1909, books from these prints and place them be providing, “In actions on assigned accounts, fore their customers, from which the latter *

the defendant shall be allowed evselected the paper desired. The evidence ery just set-off or other defense which existed shows that the first order, or the order sued in his favor at the time of his being notified upon, was for the purpose of making these of such assignment,” for the reason that samples. Defendant was put to great ex- the damages claimed are unliquidated, and pense in making up these sample books, nothing may be claimed as a set-off except liqwhich were worthless for the reason that uidated damages. Brokerage Co. v. CampFrederick Beck & Co. went into bankruptcy, bell, supra; Estate Co. v. Arms Co., supra; and failed to fill the remainder of the first Volker v. Stone, supra. order and the subsequent orders of paper to [3] However, defendant says that it may

[] correspond with the samples. Defendant was maintain its defenses as an equitable setable to get elsewhere only a portion of the off, and cites in support thereof the cases of paper to fill orders secured on these samples. Barnes v. McMullins, 78 Mo. 260, and FulThe failure of Frederick Beck & Co. to fill kerson v. Davenport, 70 Mo. 541. Even unthe remainder of the first and the subsequent der these cases in order to maintain an equiorders also put defendant to other expenses table set-off or counterclaim defendant's in reference to the matter. It was shown claim must be a liquidated one, and not one that Frederick Beck & Co. knew that the first that requires the impaneling of a jury to order was filled for the purpose of making liquidate. up the sample books, and knew that the pa- It is urgently claimed by defendant that it per contained in this order was worthless, was greatly mistreated by Frederick Beck unless. subsequent orders were filled. & Co. and that to permit a recovery against

The petition sues for that part of the first defendant in this suit would work an inorder that was filled, which was assigned to justice upon it. While the Legislature has plaintiff. The answer was a general denial legislated upon the subject, it has failed, as and a “counterclaim and equitable defense shown by the cases cited, to enact any law and recoupment”; the latter stating facts as permitting the relief to defendant to which already detailed, pleading them as a set-off it urges it is entitled. Of course, it is not or counterclaim, and asking damages for the for the court to make the law. It is not failure of Frederick Beck & Co. to fill the necessary for us to decide what would have remainder of the first and subsequent orders, been the result if defendant had pleaded in and also for $29.40, being the amount of mon- his answer the facts set up in his counterey defendant was required to pay in excess claim, or set-off, as a bar to plaintiff's acfreight by reason of the shipment sued upon tion. being diverted by Frederick Beck & Co. over The judgment is affirmed. All concur. an indirect route to St. Joseph, Mo. Defendant contends that the various orders, including the first order, was one entire contract, and as Frederick Beck & Co. failed to per

BUIS v. NESTLER et al. (No. 12806.) form that contract, that its assignee, the plaintiff, cannot recover in this suit, and that

(Kansas City Court of Appeals. Missouri. while defendant under its counterclaim or

April 1, 1918.) set-off cannot recover a judgment over against 1. MUNICIPAL CORPORATIONS Em568(3)—PUBplaintiff, it can maintain its counterclaim or LIC IMPROVEMENT-SUIT ON GRADING TAX

BILL-EVIDENCE. set-off for the purpose of defeating plain

In a suit to recover on grading tax bills, evi-tiff's suit. It is the contention of the plain- dence held to show that there was a reduction of tiff that the various orders were separate the grade at the junction of the alleys abutcontracts, but, under the law as we view it. ting defendant's property not authorized by the it is unnecessary to determine whether the 2: MUNICIPAL CORPORATIONS Om446 – GRADorders were one entire contract or separate ING TAX BILLS-VALIDITY. contracts. We will assume, for the purpose

Where a contractor did not substantially of the case, that they were one contract.

comply with the specifications in a contract for

improvement, the grading tax bills issued to him [1, 2] Defendant cannot maintain its coun- were void. terclaim or set-off for the reason that a 3. Costs C 63-PARTIAL RECOVERY-APPORcounterclaim under the laws of this state TIONMENT. may not be asserted against as assignee, as The circuit court had power to assess twounder section 1807, R. S. 1909, a counter-thirds of the costs against plaintiff, and did not

abuse its discretion in so doing, where there was claim “must be one existing in favor of a judgment for plaintiff on the third count, and defendant and against a plaintiff.” Broker- for defendant on the first and second counts.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from Circuit Court, Buchanan, hump, would benefit their lots, and the conCounty; C. H. Mayer, Judge.

tractor needed the dirt for filling in the other "Not to be officially published."

parts of the work. Plaintiff secured waivers Suit by John F. Buis against Louis Nestler from the property owners abutting the porand others to recover on a grading tax bill tion of the alley he proposed to grade farther, and a sewer bill, with cross-bill by defendant. I but procured none from defendant, assigning Judgment for plaintiff on the sewer tax bill, | as a reason therefor that he did not think and judgment for defendants on the grading defendant would be injured by the new extax bills, and plaintiff appeals. Affirmed. cavation. The additional excavation was

Fulkerson & Fulkerson, of St. Joseph, for consented to by the city engineer's office and appellant. Barney E. Reilly and W. B. Nor- the work was done, resulting in an additional ris, both of St. Joseph, for respondents.

excavation of seven feet below the establish

ed grade at one place, and at the junction BLAND, J. This is a suit in three counts; of the east and west and the north and south each of the first and second counts is to re alleys, where defendant's property abutted cover on a grading tax bill, and the third the new work, the new excavation ran three count is on a sewer bill. Defendant filed or four feet below the established grade. . an answer and cross-bill setting up various There was evidence that this damaged dedefenses, alleged that the tax bills were void, fendant's lot, in that he had to remove fences and for that reason a cloud rested upon the and buildings and grade down his lot to meet title of the property affected, and, conse

the new, or additional grade made by the

contractor. quently, that defendant had no adequate

Defendant testified that this remedy at law, and asked that the tax bills damage amounted to $250. be declared void and the title be cleared from

It is plaintiff's contention that the weight the cloud mentioned. There was no defense of the evidence is that there was no reducmade to the sewer tax bill, and judgment tion of the grade at the junction of the north

We was rendered for plaintiff on that bill, but the and south and east and west alleys. court rendered judgment for the defendant think the weight of the evidence is to the on the grading tax bills.

contrary. The fact that there was additional [1] As we have concluded that the judg- excavation at said point to the extent of ment of the court was right, it is unnecessary

three or four feet was testified to by Mr. Hafor us to take up the various defenses made zen, a civil engineer who made a survey for to the grading tax bills. We only discuss a

the purpose of determining the matter, by a defense that we think is conclusively against lay witness, one Howard, who was acquaintthe validity of the tax bills. The proceeding ed with the situation, and by defendant himunder which the tax bills were issued was

self. The only evidence introduced by plainan ordinance of the city of St. Joseph, Mo., tiff to contradict this was his own testimony. authorizing the grading of a street and alleys. It is true that Mr. Hess, city engineer, testiDefendant's property touched an east and fied that he did not think there was any lowwest and a north and south alley, and the ering of the grade at the point mentioned, rear, or northwest, corner of defendant's lot but there is no showing that this witness abutted upon the junction of these alleys. ever made a survey of the work to find out It seems that in the vicinity of defendant's whether there was a reduction of the grade, premises the ordinance and contract provided and his testimony shows that he was doing for excavation work, and at another portion nothing but hazarding a guess in reference to of the work a large fill was required to be the matter. The testimony of City Engineer made. The contractor did not have sufficient Hoff was likewise of a very indefinite and earth from the street and alleys to be graded unsatisfactory character. down, that were covered in the contract, to

[2] We are of the opinion that plaintiff not make the fill at the lower portion of the work, having substantially complied with the speciand he secured additional dirt from grading fications contained in the contract for the private property in the vicinity.

improvement, the tax bills sued upon are After the alley north of plaintiff's lot had void. Heman v. Gerardi, 96 Mo. App. 231, been brought to the grade established in the 69 S. W. 1069; Coulter v. Construction Co., ordinance, the property owners who owned 131 Mo. App. 230, 110 S. W. 655. land abutting on the west half of the alley (de

[3] The court had the power to assess twofendant's lot abutted on the east half) agreed thirds of the costs against plaintiff and onethat the contractor should make a further third against defendant, and did not abuse excavation on the west half of the alley. his discretion in so doing. Bender v. ZimIt seems that the property owners thought merman, 135 Mo. 53, 36 S. W. 210. that the further excavation, described as a The judgment is affirmed. All concur.

CITY OF ST. JOSEPH V. RACKLIFFE- leges in its petition that within the seven GIBSON CONST. CO. et al.

years limited in the contract the pavement (No. 12803.)

“became badly in need of repairs," setting (Kansas City Court of Appeals. Missouri.

out the facts in relation thereto; that it notiApril 29, 1918.)

fied defendant construction company “to corMUNICIPAL CORPORATIONS Om 375 STREET rect and make good the faults, defects, and IMPROVEMENTS - BREACH OF CONTRACT imperfections therein"; that afterwards the RIGHT OF THE CITY TO RECOVER.

A city cannot maintain an action against a engineer determined in detail the extent of contractor for breach of guaranty in failing to the faults and imperfections in the street, * repair pavement, where city suffered no dam- curbing, and sidewalks, setting out each deage; the loss falling on the abutting propertyfect with the estimated cost of repairing it, owners for whom the city is not suing as trus-all aggregating the sum of $951.50, as set tee. Appeal from

from Circuit Court, Buchanan forth in the first count, and $157.50 in the County; Charles H. Mayer, Judge.

second count. The right of the city to main"Not to be officially published.”

tain this action is denied by defendants. Suit by the City of St. Joseph against the Tax bills against abutting property have Rackliffe-Gibson Construction Company and been issued in payment for the work as callanother. From a judgment for defendants, ed for in the contract, which work was to plaintiff appeals. Affirmed.

be maintained for seven years. If the work Charles L. Faust, City Counselor, Perry A. was not of a character to last that time and Brubaker, Asst. City Counselor, and Herman was in need of repairs, the loss, of course, Hess, 2d Asst. City Counselor, all of St. Jos-would fall upon the property owners. That eph, for appellant. Spencer & Landis, of St. being true, the only ground upon which the

city could maintain an action would be as Joseph, for respondents.

trustee for such persons, and it does not apELLISON, P. J. Defendant Rackliffe-Gib- pear from the petition, contract, or bond to son Construction Company, agreed by its have that capacity. St. Louis V. Anderson, contract in writing with the plaintiff city to 229 Mo. 181, 185, 186, 129 S. W. 528, 138 Am. do certain street paving in the city, includ- St. Rep. 414; St. Louis v. Wright Contracting sidewalk and curbing. Among other pro-ing Co., 210 Mo. 491, 109 S. W. 6; St. Louis visions the contract contained the following: v. Wright Contracting Co., 202 Mo. 451, 101 That the construction company would fur- S. W. 6; City of Bethany v. Howard, 149 nish the material and do the work to the Mo. 504, 51 S. W. 94. It follows that the satisfaction of the board of public works of trial court took the proper view in finding the city, and would “maintain the same in a for defendants. state of perfect repair for a period of seven

We have noted above the seeming inconyears."

Then following, in the same sen- sistency or ambiguity in the contract in first tence, is the apparently inconsistent provi- providing that the work shall be maintained sion that the construction company "guar- and kept in a perfect state of repair for anteed that the work herein mentioned shall seven years, and also that it shall be so conbe constructed with such material and instructed that it will endure without repair such manner that the same shall endure for that period. But we are of the opinion without the need of any repairs for a period that the reasonable meaning is that, if deof seven years from and after the comple- fects appear in the limited time, they may tion and acceptance of the same, without be repaired by the contractors, so as to keep further compensation than that provided for the work restored and “in a state of perfect in this contract." A bond was given, with repair," and thereby his obligation be disdefendant Preston as surety, conditioned for charged. At any rate these remarks on a faithful performance of the contract. The these provisions do not interfere with our work was finished, accepted by the city and conclusion as to the right to maintain the paid for by the issuance of tax bills against action. abutting property owned by a number of

The judgment is affirmed. All concur. citizens. The city, claiming that the work had not been kept in repair and had not endured for seven years without the need of repairs, brought this action on the bond for PRICHARD v. CONNECTICUT FIRE INS. a breach of that part of the contract, the

CO. OF HARTFORD, CONN. petition being in two counts. In the circuit

(No. 12848.) court the trial was without the aid of a (Kansas City Court of Appeals. Missouri. jury, and judgment rendered for defendants.

April 29, 1918.) It appears that the city has not had any 1. INSURANCE Om 131(2) - ORAL CONTRACT repairing done, and that it has not laid out

AUTHORITY OF AGENT.

An agent, having power to solicit and take any money on account of the work, nor have applications, collect premiums, and countersign the property owners caused any repairing to and deliver fire policies, may bind a foreign inbe made. There was evidence, incidentally, surance company by an oral contract, in view of that the park board had made some repairs, foreign insurance company shall be counter

Rev. St. 1909, Š 7047, providing that policy of but no cost was shown. The city merely al-1 signed by licensed resident agent.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes